Delhi District Court
Special Judge (Pc Act) Cbi-13 vs Padmanabhan Nair (Supra) To on 22 April, 2019
CBI-34/2016 (old) CBI-1/2019 (New)
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI-13,
ROUSE AVENUE DISTRICT COURT, NEW DELHI
Registration No. : CBI/34/2016 (Old) CBI-1/2019 (New)
Under Section : 120-B r/w section 420/468/471 IPC &
Section 13(2) read with Section 13 (1) (d)
of Prevention of Corruption Act, 1988.
Zone : CBI/ACB/ND
FIR No. : RC/32(A)/1994-DLI
CNR No. : DLET01-000011-1998
In the matter of : -
CBI
VERSUS
1. SH. SUBHASH HANDA
(proceedings against him abated vide order dated 19.01.2017)
S/o Sh. Khairati Lal Handa,
R/o H.No.A-1/117, Safdarjang Enclave, New Delhi-29.
Also at : A-379, Pocket C, Vasant Kunj, New Delhi.
2. SH. DILBAGH SINGH KANWAR
S/o Late Sh. Surjit Singh,
R/o. H.No. 551, 2nd Floor, Sector-7,
Urban Estate, Panchkula, Haryana.
3. DR. SUNITA VIVEK (APPROVER)
W/o. Sh. V.N. Garg,
R/o. A-40, Sector-33, Noida, U.P.
4. SH. SUMEDH PATHAK
S/o. Late Sh. Anand Dev Pathak,
R/o. Flat No. D-5/15, Ground Floor,
Behind Amravati Enclave, Panchkula, Haryana.
5. SH. RAM TIRATH DUVEDI
S/o. Late Sh. Hazari Lal,
R/o. Village & Post Office Mehatpur, District & Tehsil Una,
PS Mehatpur, Himachal Pradesh.
Page 1 of 80 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court,
New Delhi
CBI-34/2016 (old) CBI-1/2019 (New)
6. SH. SARDARI LAL KASHYAP
S/o. Late Sh. Pukhu Ram,
R/o. L-169, Army Flats, Mansa Devi Complex,
Sector-4, Panchkula, Haryana.
7. SH. RAJBIR KAJAL
S/o. Sh. Mangal Singh,
R/o. H.No.1107, Sector-7, Thanesar,
Urban Estate, Kurkshetra, Haryana.
8. SH. GURMEJ SINGH
S/o. Late Sh. Balwant Singh,
R/o. Village Kheri Rangran, Post Office Khera,
District Yamuna Nagar, Tehsil Jagadhri, Haryana.
9. SH. GIREESH KUMAR SHARMA
S/o. Late Sh. Raghunath Sharma,
R/o. H.No. 570, Sector-9, Gurgaon, Haryana.
10.SH. ASHOK KUMAR AHLUWALIA
S/o. Late Sh. R.K. Ahluwalia,
R/o. H.No.102, Tower No.19, Royale Estate,
Zirakhpur, District Mohali, Punjab.
11.SH. ASHOK KUMAR
Sh. Late Sh. Puran Chand,
R/o. H.No.237, Sector-10, Ambala City, Haryana.
12.SH. BRIJ MOHAN JAGOTA
S/o. Late Sh. Gurdas Ram,
R/o. H.No.39, Ward No.2, Opposite Bus Stand,
Nangal Road, Post Office Santokh Garh,
District Una, Himachal Pradesh.
13.SH. P.S. KHULLAR
(Expired during the court proceedings)
S/o. Sh. R.L. Khullar,
R/o. Kothi No.8, Sector-5, Urban Estate, Kurukshetra.
........ACCUSED PERSONS
Page 2 of 80 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court,
New Delhi
CBI-34/2016 (old) CBI-1/2019 (New)
Name and particulars of complainant : Source Information
Date of Institution : 06.07.1998
Date of reserving judgment : 15.04.2019
Date of pronouncement : 22.04.2019
Decision : Accused A2 to A12 are
acquitted (except A-3, who
was approver).
(Section 437-A Cr.P.C. complied with by all the accused persons)
JUDGMENT
THE CASE SET UP BY THE PROSECUTION :-
1 On 03.06.1994 on the basis of source information, present case bearing RC No.32(A)/94-DLI was registered by CBI against thirteen accused persons namely Sh. Subhash Handa (since expired), Sh. D.S. Kanwar, Dr. Sunita Vivek, Sh. S. Pathak, Sh. Ram Tirath Duvedi, Sh.
Sardari Lal Kashyap, Sh. Rajbir Kajal, Sh. Gurmej Singh, Sh. G.K. Sharma, Sh. Ashok Kumar (s/o. Sh. R.K. Ahluwalia), Sh. Ashok Kumar (s/o. Sh. Puran Chand), Sh. B.M. Jagota and Sh. P.S. Khullar (since expired). Accused Subhash Handa (A1) was a private party, whereas other accused persons were working in different capacities as public servant in National Fertilizers Ltd. (hereinafter referred to as NFL), at the relevant time.
2 Briefly stated, it was alleged in the FIR that accused persons from A2 to A13 being public servants entered into a criminal conspiracy with Sh. Subhash Handa (A1), in the matter of appointment of Adhoc dealership of M/s. Aarkay Enterprises and Kubair Traders. In pursuance of that criminal conspiracy, these two firms of Sh. Subhash Handa were also supplied fertilizers on credit, which resulted into causing pecuniary loss Page 3 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) of more than Rs.2.52 crores to NFL and consequent gain to Subhash Handa and his firms.
3 Sanction for prosecution of above public servants except A2, were obtained from the competent authority. A2 had retired, hence sanction was not obtained for his prosecution. After completion of investigation, accused persons namely Sh. Subhash Handa (A1) (since expired), Sh. D.S. Kanwar (A2), Dr. Sunita Vivek (A3) (now approver), Sh. Ram Tirath Duvedi (A5), Sh. Sardari Lal Kashyap (A6), Sh. Rajbir Kajal (A7), Sh. Gurmej Singh (A8), Sh. G.K. Sharma (A9), Sh. Ashok Kumar (A10) (S/o. Sh. R.K. Ahluwalia), Sh. Ashok Kumar (A11) (S/o. Sh. Puran Chand), Sh. B.M. Jagota (A12) and Sh. P.S. Khullar (A13) were charge sheeted for offences punishable under Section 120-B read with section 420 IPC and section 13(2) read with section 13 (1) (d) of Prevention of Corruption Act, 1988 as well as for substantive offences. Further, accused Sh. Subhash Handa (A1) was charge sheeted for offence punishable under Section 406 IPC. Apart from these, accused Sh. D.S. Kanwar (A2), Sh. S. Pathak (A4), Sh. Ram Tirath Duvedi (A5), Sh. Rajbir Kajal (A7) and Sh. Gurmej Singh (A8) were charge sheeted for offences punishable under Section 120-B read with section 420/468/471 IPC & section 13(2) read with section 13 (1) (d) of Prevention of Corruption Act, 1988.
CHARGES :-
4 Vide order on charge dated 01.08.2013, charges were framed against A1, A2 and A5 to A13 for offences punishable under Section 120B IPC read with Section 420 IPC & Section 13(2) read with Section 13 (1) (d) PC Act, 1988, to which they pleaded not guilty and claimed trial.
Similarly, on the same day, a separate charge under Section 120B IPC Page 4 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) read with Section 420/468/471 IPC & Section 13(2) read with Section 13 (1) (d) PC Act was framed against accused A2, A4, A5, A7 and A8, to which they pleaded not guilty and claimed trial. On same day, another separate charge for substantive offence under Section 406 IPC was framed against A1/Sh. Subhash Handa, to which he pleaded not guilty and claimed trial.
5 Thereafter, CBI filed an application under Section 216 Cr.P.C thereby praying that besides framing of charge of criminal conspiracy, accused persons were also liable to be prosecuted for the substantive offences, which they had allegedly committed. Vide order dated 22.02.2014, aforesaid application filed by CBI was allowed and fresh charges were framed. Separate charges u/s 420 IPC against accused Subhash Handa (A1); u/s 13 (2) read with Section 13 (1) (d) P.C. Act, 1988 against accused A2 and A5 to A13; u/s 420 IPC against accused Sh. Subhash Handa (A1); and u/s 13(2) r/w Section 13(1) (d) P.C. Act against accused persons Sh. D.S. Kanwar (A2), Sh. Dr. Sunita Vivek (A3), Sh. Ram Tirath Duvedi (A5), Sh. Rajbir Kajal (A7) and Sh. Gurmej Singh (A8) were framed, to which accused persons pleaded not guilty and claimed trial.
6 Charges were framed against accused Subhash Handa (A1) for offences punishable u/s 120B IPC read with Section 420468/471 IPC & Section 13(2) read with Section 13 (1) (d) PC Act, 1988 as well as separate charge u/s 420 IPC as well as 471 IPC were framed against him. However, this accused expired during trial and vide order dated 19.01.2017, case stood abated against him. Charges were also framed against accused P.S. Khullar (A13) u/s 13 (1) (d) PC Act, 1988 punishable u/s 13 (2) of P.C. Act. However, this accused also expired Page 5 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) during trial and case stood abated against him. In the charges framed against accused persons following allegations were made :-
7 That all the accused persons, except Subhash Handa (A1), during the period 1990-91, being public servants employed in National Fertilizer Ltd., while functioning at different levels at different places, in pursuance of criminal conspiracy, by corrupt or illegal means abused their official positions and thereby extended undue favour to Subhash Handa (A1) by appointing his firms i.e. M/s Aarkay Enterprises and M/s Kubair Traders as adhoc dealer. It was further allegation of prosecution that firms of A1 were neither eligible for appointment of adhoc dealership, either at Ambala or Shahbad, nor these firms had financial soundness, nor supporting documents were enclosed with the respective applications seeking appointment of adhoc dealership. It is further allegation of prosecution that the adhoc dealership of both these firms was dishonestly approved uptill 31.03.1992 and in this context, Sh. Divedi (A5) prepared an undated recommendation in favour of M/s Aarkay Enterprises, thereby falsely mentioning that M/s Aarkay Enterprises was financially sound and had good relations in the market as well as with farmers, though knowing fully well that the aforesaid firm had come into existence only on 16.10.1990. Sh. Sardari Sardari Lal Kashyap (A6) submitted the recommendation dated 12.11.1990, which was prior to the formation of the firm M/s Kubair Traders at Shahbad. Sh. Rajbeer Kajal (A7) submitted the recommendation dated 10.09.1991, which was actually much after the date 15.03.1991, when M/s Kubair Traders was appointed as adhoc dealership. Sh. R.T. Divedi (A5), who was posted as Development Officer in Ambala office, dishonestly issued 2141.30 MTs of urea worth Page 6 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) Rs.44,42,058.20 through seven delivery orders to the firms of Subhash Handa (A1) without receipt of any payments, either through cash/DD.
He further issued 963.10 MTs of Kisan Urea worth Rs. 20,64,886.40 through six delivery orders to M/s Kubair Traders, firm of Subhash Handa (A1). It is further allegation of prosecution that Sh. Rajbeer Kajal (A7), who was posted as Field Assistant in NFL, Kurukshetra dishonestly issued 1255.25 MTs of Kisan Urea worth Rs. 27,59,039.50, through three different delivery orders to M/s Kubair Traders, that too without receipt of payments either in cash/DD. It is further alleged that Sh. Gurmej Singh (A8), Development Officer, NFL posted at Yamuna Nagar dishonestly issued 5491.654 of MTs of fertilizer worth Rs. 1,32,53,955.20 against 18 delivery orders to M/s R.K. Enterprises, without receipt of payment. Sh. G.K. Sharma (A9) the then Field Assistant, NFL posted at Karnal dishonestly issued 347.413 MTs of NFL DAP worth Rs. 11,79,119.72 against two delivery orders to M/s Aarkay Enterprises, without receipt of payment. Sh. Ashok Kumar Ahluwalia (A10), Asstt. Area Manager, NFL posted at Kaithal dishonestly issued 518.385 MTs of urea worth Rs. 8,03,243.50 against three delivery orders to M/s Aarkay Enterprises, without receipt of payment. Sh. Ashok Kumar S/o Puran Chand (A11), the then Sr. Field Asstt. posted at Yamuna Nagar dishonestly issued 149.65 MTs of NFL Urea worth Rs. 3,20,849.60 against two delivery orders to M/s Aar Kay Enterprises, without receipt of payment, Sh. B.M. Jagota (A12), the then Development Officer, NFL posted at Kaithal dishonestly issued 232.00 MTs of urea worth Rs. 3,82,150.00 against three delivery orders to M/s Aarkay Enterprises, without receipt of payments which were within the knowledge of Sh. P.S. Khullar (A13), the then Area Manager Page 7 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) of NFL Kurukshetra, who was supervising officer. Sh. P.S. Khullar (A13) dishonestly issued a written instruction to Sh. Gurmej Singh (A8) vide a slip dated 05.07.1991, thereby asking him to deliver the material to (A1) as per requirement and thus obtained pecuniary advantage to the tune of Rs. 2,52,05,302.12 for Subhash Handa (A1). Thus, all the accused persons committed offences punishable u/s 13(1)(d) of P.C. Act, 1988 punishable u/s 13(2) of The Prevention of Corruption Act, 1988.
8 It is further allegations against the accused Sh. D.S. Kanwar (A2), Sh. S. Pathak (A4), Sh. R.T. Diwedi (A5), Sh. Rajbeer Kajal (A7) & Sh. Gurmej Singh (A8) that being public servants of NFL as well as members of a committee formed to award the contract of Handling & Transportation, abused their official position thereby wrongfully recommended, approved and awarded H & T contract to M/s R.K. Road Lines, which was a firm of (A1) at a higher rate. It is further alleged that accused Sh. S. Pathak (A4), Sh. R.T. Diwedi (A5), Sh. Rajbeer Kajal (A7) & Sh. Gurmej Singh (A8), adopted corrupt and illegal means by abusing their official position and in order to provide undue favour to the firm, submitted a false note, whereupon the contract was wrongfully approved by A2 and thus, all the aforeaid accused persons committed offence punishable Section 13(1)(d) P.C. Act, 1988 punishable u/s 13(2) of the Act.
9 It is further allegations that during the period 1990-91, in pursuance to criminal conspiracy Subhash Handa (A1) submitted quotation in the name of M/s R.K. Road Lines thereby enclosing undated certificate, purported to have been issued by the Ambala Public Carrier Operators Union in favour of M/s R.K. Road Line, thereby enclosing undated Page 8 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) certificate, purported to be issued by the Ambala Public Carrier Operator Union, Ambala City. Accused persons namely Sh. S. Pathak (A4), Sh. R.T. Divedi (A5), Sh. Rajbeer Kajal (A7) and Sh. Gurmej Singh (A8) dishonestly submitted the quotation for Handling & Transportation in the name of M/s Nitco Roadways & M/s Ahuja Goods Carriers, purported to have been issued by them alongwith false and fabricated committee report with the purpose to cheat NFL. On the basis of recommendation, accused Sh. D.S. Kanwar (A2) awarded the transport contract to M/s R.K. Road Lines and thus, aforesaid accused persons were charged for offence punishable u/s 468 IPC. 10 It is further allegation that during the period 1990-91, in pursuance to aforesaid criminal conspiracy, accused Subhash Handa (A1) used these forged and fabricated documents as genuine and submitted quotation in the name of M/s R.K. Road Lines thereby enclosing undated certificate, purported to have been issued by the Ambala Public Carrier Operators Union. Accused Sh. S. Pathak (A4), R.T. Divedi (A5), Rajbeer Kajal (A7) and Gurmej Singh (A8) submitted forged quotations of Nitco Roadways and M/s Ahuja Goods Carrier for Handling & Transportation of fertilizer of NFL and on the recommendation, transport contract was awarded to M/s R.K. Road Lines by D.S. Kanwar (A2), having knowledge and reason to believe that the documents were forged and fabricated. Thus, all the aforesaid accused persons were charged with the offence punishable u/s 471 IPC.
PROSECUTION EVIDENCE :-
11 Prosecution examined 40 witnesses in support of its case, as per following descriptions :-
Page 9 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) Name Description Exhibited Documents PW1/Sh. He was working as CMD, NFL in Ex.PW1/1 (sanction order Dinesh the year 1998. He accorded bearing no. NFL/Vig./9/120 Singh sanction order to prosecute /91/P/7106 dated accused Sunita Vivek (A3 now 29.01.1998) & approver), P.S. Khullar (A13), Ex.PW1/2 (sanction order R.T. Divedi (A5), Rajbir Kajal bearing no. NFL/Vig./9/120 (A7), Gurmej Singh (A8), G.K. /91/P/7107 dated Sharma (A9), Ashok Kumar 23/29.01.1998). (A10) S/o. Sh. R.K. Ahluwalia, Ashok Kumar (A11) S/o. Sh. Puran Chand and B.M. Jagota (A12) in this case, bearing no. NFL/Vig./9/120/91/P/7106 dated 29.01.1998.
He accorded another sanction order to prosecute accused S. Pathak (A4), R.T. Divedi (A5), Gurmej Singh (A8) and Rajbir Kajal (A7) in this case, bearing no.NFL/Vig./9/120/91/P/7107 dated 23/29.01.1998.
PW2/Sh. He was working as Assistant Ex.PW2/A (seizure memo Trilochan Accounts Officer in Zonal Office, i.e. D-68); Singh NFL during 1990 to 1992. Ex.PW2/B (computerized Nagpal He proved seizure memo (D-68) statement of account of dated 17.11.1996 in respect of M/s. Aarkay Agency i.e. D-
computerized statement of 69) & accounts of M/s. Aarkay Agency, Ex.PW2/C (statement of Ambala City from April 1990 to account of M/s. Kuber 1994 and statement of accounts Traders i.e. part of D-69). of M/s. Kuber Traders from April 1991 to March 1993.
He also proved computerized statement of account of M/s.
Aarkay Agency (D-69) and statement of account of M/s.
Kuber Traders (part of D-69).
Page 10 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) PW-3/Sh. He was working as Stenographer Ex.PW3/D1 (D4) (note with Mahipal in the Area Office, Kurukshetra, regard to hiring of private Singh Panipat, NFL, during the period godown at Ambala of 1990 to April 1991. S.Pathak) He deposed that in the absence of account official posted at Kurukshetra, he used to prepare cash receipt voucher by the order of P.S. Khullar, Area Manager. Said CRV used to be sent to the bank.
He identified signature of S. Pathak on D-4.
PW-4/Sh. His duty was to look after entire Ex.PW-4/1(D-89);
Vidya job of Chandigarh Zone relating Ex.PW-4/2 (documents/old
Nand to finance and accounts, records);
financial concurrence of different
proposals received from Ex.PW4/3 (voucher no.33
marketing division, release of dated 30.05.1991);
payments to the contractors etc. Ex.PW4/4 (voucher no.35);
He identified signature of Ex.PW4/5 (supporting
Eklavya Verma on D-89 i.e. paper for journal voucher
document dated 31.10.1990 no.35);
regarding award of NFL
Ex.PW4/6 (bill of storage
dealership at Ambala, Haryana,
charges for the month of
which was awarded to M/s. Aar
July 1991, dated
Kay Enterprises under "Assured
28.08.1991);
Offtake Scheme".
Ex.PW4/7 (bill for loading
He proved seizure memo dated
and unloading charges at
12.08.1997(D-86) and
the rake point for the
documents/old records given by
month of July 1991, dated
him to CBI officer.
28.08.1991);
He identified signature of
Rajender Narang on payment
voucher no.33 issued in favour
of M/s. Anil Acharya (godown
owner) dated 30.05.1991;
Page 11 of 80 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court,
New Delhi
CBI-34/2016 (old) CBI-1/2019 (New)
adjustment/journal voucher no.35 Ex.PW4/8
dated 30.05.1991; supporting paper for (statement adjustment/journal voucher no.35. showing receipt in He proved bill of storage charges for warehouse and the month of July 1991, dated disposal from 28.08.1991 and bill for loading and warehouse for the unloading charges at the rake point for month of July the month of July 1991, dated 1991, in respect of 28.08.1991. Same were submitted by DAP/ Urea); Mr. Acharya, certified by Mr. Rajbir Ex.PW4/9 Kajal and submitted by Mr. P.S. Khullar. (statement He also proved statement showing showing receipt in receipt in warehouse and disposal from warehouse and warehouse for the month of July 1991, disposal from in respect of DAP/Urea, which was warehouse for the submitted by Mr. Acharya and certified month of July by Mr. Rajbir Taya (Field Officer). 1991, in respect of DAP/Urea);
He also proved statement showing receipt in warehouse and disposal from Ex.PW4/10 warehouse for the month of July 1991, (ordersheet in respect of DAP/Urea, which was prepared in submitted by Mr. Achary and certified departmental by Mr. Rajbir Kajal. enquiry);
He also proved ordersheet prepared in Ex.PW4/D1 departmental enquiry. (written brief);
He also proved written brief given by Ex.PW4/DX7
him as presenting officer in respect of (memorandum
the charged employees, as placed in dated 10.03.2005
the record of departmental of NFL) &
proceedings. Ex.PW4/D2
He also proved memorandum dated (ordersheet dated 10.03.2005 of NFL and ordersheet 23.03.2005 dated 23.03.2005 passed by Sh. A.K. passed by Sh. A.K. Garde (inquiry officer). Garde);
He identified, Documents D-8/Ex.PW-
11/1, D-9/Ex.PW-11/2, D-10/Ex.PW-
11/3, D-11/Ex.PW-15/10, D-12/Ex.PW-
Page 12 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) 15/11, D-13/Ex.PW-15/12, D-14/Ex.
PW-11/4, D-15/Ex.PW-11/5, D-16/Ex.
PW-11/06, D-17/Ex.PW-11/7, D-18/Ex.
PW-11/8, D-19/Ex.PW-11/9, D-20/Ex.PW-11/10, D-21/Ex. PW-15/13, D-22/Ex.PW-15/14, D-23/Ex.PW-15/15, D-24/ Ex.PW-15/16, D-25/Ex.PW-15/17, D-26/Ex.PW-15/17, D-27 & D-28, D-29/Ex.PW-15/19, D-30/Ex.PW-15/20, D-31/Ex. PW-15/21, D-32/Ex.PW-15/22, D33/Ex.PW-15/28, D-34/Ex. PW-15/29, D-35/Ex.PW-15/30, D-36/Ex.PW-15/23, D-37/ Ex.PW-15/24, D-38/Ex.PW-15/25, D-39/Ex.PW-15/26, D-40 /Ex.PW-15/27, D-41 & D-42, D-43/Ex.15/37, D-44/Ex.PW- 15/38, D-45/Ex.PW-15/31, D-46/Ex.PW-15/32, D-47/Ex.PW
-15/33, D-48/Ex.PW-15/34, D-49/Ex.PW-15/39, D50/Ex.PW
-15/35 and D-51/Ex.PW-15/36, to be delivery orders for M/s. Aarkay Enterprises and M/s. Kuber Traders. PW-5/Sh. He was working as Accounts Ex.PW-5/1 (copies Devendra Supervisor in the marketing office of of cheque of Chandel NFL, East of Kailash, New Delhi, in the Rs.2.25, bearing year 1992. no. 390308 drawn On 08.01.1992, he had received one on PNB, Mehrauli cheque of Rs.2.25 crore bearing Branch along with no.390308, drawn on Punjab National letter addressed to Bank, Mehrauli Branch issued by M/s. G.M. Marketing, Rajnigandha Enterprises bearing NFL, East of signature of Subhash Handa, CMD of Kailash, New Rajnigandha Enterprises along with Delhi, present in one letter addressed to G.M. file D2) Marketing, NFL, East of Kailash, New Delhi, containing details of the parties to whom it was to be credited, present in file D-2.
PW-6/Sh. He was working as Supervisor Ex.PW6/A
Rakesh Accounts in Central Marketing Office, (certified copy of
Sharma NFL, East of Kailash, New Delhi, in cash receipt
January 1992. voucher dated
He proved certified copy of cash 10.01.1992); receipt voucher dated 10.01.1992. Ex.PW6/B He identified signature of Mr. Ram (adjustment Page 13 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) Kumar and Mr. Y.P. Bhola on voucher);
adjustment voucher and proved the same.
PW-7/Sh. He worked in Material Section up to Ex.PW7/1 A.K. 1989 and thereafter, he was diversified (proposal letter Dhingra to Marketing as Additional Manager, dated 15.03.1991);
CMO, New Delhi. Ex.PW7/2 (note of He proved D-90 (page 81) i.e. proposal Ashok Kumar on letter dated 15.03.1991 regarding D-90 (page 52) hiring of storage space for storing dated 01.04.1991); fertilizers of M/s. R.K. Road Lines at Ex.PW7/3 Yamuna Nagar and Shahabad with (inspection report capacity of 4000 MT and 2500 MT, dated 28.03.1991 respectively. regarding fitness He identified signature of Ashok of godown at serial Kumar, Sr. PS on D-90 (page 52) i.e. no. i to iii and iv, note of Ashok Kumar dated, for storage of 01.04.1991 and proved the same. fertilizers with He also proved page 80 of D-90 i.e. immediate effect); inspection report dated 28.03.1991 Ex.PW7/4 (page regarding storage capacity/fitness of 77 of D-90 i.e. godown at serial no. i to iii and iv, for letter dated storage of fertilizers with immediate 01.04.1991 of R.K. effect. Roadlines He also proved page 77 of D-90 i.e. addressed to letter dated 01.04.1991 of R.K. General Manager Roadlines addressed to General (Marketing), NFL, Manager (Marketing), NFL, New Delhi. New Delhi); He also proved back side of page 52 Ex.PW7/5 (back and page no.53 of D-90, in which Sr. side of page 52); SPS recommended the revised rate Ex.PW7/6 (page given by M/s. R.K. Roadlines for 53 of D-90)& storage capacity of 2500 MT may Ex.PW7/7 (IOM pleased be approved for a period of dated 04.04.1991); one year.
He identified signature of R. Tirath on IOM dated 04.04.1991 addressed to Page 14 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) ZM (ZO), Chandigarh by Ram Tirath, DO (NFL), Ambala.
PW-8/Sh. He was working as Deputy/ Additional Ex.PW8/A (note Anil Manager Marketing at Central made on page 13 Kumar Marketing Office, NFL, New Delhi, in of file D2);
Sharma the year 1990 to 1992. His duties were Ex.PW8/B (note
to look after sales and distribution of on page 2 of file
fertilizers. D3);
He identified writing and initial of Dr. Ex.PW8/C (note Sunita Vivek on page 13 (D2), file on page 1 & 2 of related to adhoc dealership of M/s. file D-5); AAR KAY Enterprises, bearing her signature at point A. He forwarded this Ex.PW8/D (letter note for approval putting his signature dated 31.10.1990 at point B on it. bearing no.NFL/ CMO/D i.e. Page 3 He also identified writing and initial of & 4 of D-5); Dr. Sunita Vivek on page 2 (D3) file related to adhoc dealership of M/s Ex.PW8/E Kuber Traders, Shahabad (M) up to (statement of PW8 31.03.1992, bearing her writing at dated 15.04.1997); portion A and signature at point B. He Ex.PW8/DX1 (note forwarded this note for approval putting on page 12 of file his signature at point C, which was D-2);
approved by A2 (G.M. Marketing). He Ex.PW8/DX2 identified signature of A2 at point D. (page no.7 to 10 of PW8 also proved note of Sh. Eklavya file D2 i.e. an Verma on page 1 & 2 of file D-5 related application form to approval for appointment of dealer no. SST/No. under assured off-takes scheme 5639);
initiated by Sh. Eklavya Verma, Ex.PW8/DX3 Assistant Area Manager under the (cheque no.
instructions of A2 (G.M. Marketing) for 390308);
regular off-take of fertilizers material through out the year. Ex.PW8/DX4 (letter dated He identified signature of Sh. Eklavya 16.06.1992 Verma at point A, approval note in the bearing no.NFL/ hand-writing bearing signature of A2 at CMO/LEGAL/4.1/3 point C, on page 1 & 2 of file D-5.
Page 15 of 80 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13,
Rouse Avenue District Court,
New Delhi
CBI-34/2016 (old) CBI-1/2019 (New)
He also proved a letter dated 990);
31.10.1990 bearing no. NFL/CMO/D, Ex.PW8/DX5 &
regarding award of NFL Dealership at Ex. PW8/DX6(civil
Ambala (Haryana) i.e. Page 3 & 4 of D- suit no.1540/93 &
5. He also identified signatures of decree);
Eklavya Verma at point A on both the
pages. Ex.PW8/DX-7
(colly. 2 pages)
He also proved office note made on (Memorandum page 12 of file D2 for appointment of dated 10.03.2005); adhoc dealer at Ambala City and identified signature of A5 on page 11 Ex.PW8/DX-8 and 12 of file D2. (true copy of statement given by He also proved an application form no. PW8 in SST/No.5639 i.e. page no.7 to 10 of departmental file D2. enquiry);
He also proved cheque of Rs.2.25 Ex.PW8/DX-9 crore bearing no.390308, drawn on (Sale Term of Punjab National Bank, Mehrauli DAP);
Branch issued by M/s. Rajnigandha Enterprises bearing signature of Ex.PW8/DX-10 (a Subhash Handa, CMD of Rajnigandha letter dated Enterprises, in favour of National 25.07.1991 written Fertilizer Ltd. by A13 to Sh. P.K. De);
He also proved a letter dated 16.06.1992 bearing no.NFL/ Ex.PW8/DX-11 CMO/LEGAL/4.1/3990 addressed to and Ex.PW8/DX- Subhash Handa (A1). He also 12 (letters dated identified signature of Sh. H.L. Verma 31.07.1991 and at point A along with date, on the 31.03.1992 sent same. by A13 to PW8) He also deposed about a civil suit no.1540/93 instituted by NFL before High Court under Section 37 CPC against M/s. Rajni Gandha Enterprises, A1, Smt. Rajni Handa, wife of A1, M/s. AAR KAY Enterprises, M/s. Kuber Traders and Kunal Madhukar, for recovery of a sum of Rs.2.39 lac. He also deposed about decree passed in favour of NFL for a sum of Rs.2.45 lac inclusive of Rs.6 lac interest pendent- lite. He further deposed about proceedings under Section Page 16 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) 138 NI Act, wherein A1 and wife of A1 i.e. Smt. Rajni Handa were convicted. PW8 was a witness on behalf of NFL in departmental enquiry against aforesaid persons. He also identified and proved Memorandum dated 10.03.2005 (original record produced by Sh. Arpit Rohtagi, AM, NFL). He also proved true copy of his statement given in departmental enquiry.
He also proved Sale Term of DAP, which was issued in the department by NFL.
He also proved a letter dated 25.07.1991 written by A13 to Sh. P.K. De.
He also proved letters dated 31.07.1991 and 31.03.1992 sent by A13 to him.
PW-9/Sh. He was posted as Regional Manager Ex.PW-9/A P.K. Dey in NFL at Karnal and was holding the (undated note i.e. post of Additional Manager Marketing. file D3);
He proved undated note i.e. file D3 Ex.PW9/B (2 of regarding recommendation of file D-85 i.e. a appointment of M/s Kubar Traders as letter dated an ad-hoc dealer for Shahbad Mandi. 24.07.1991); He identified signature of Rajbir (A7) at Ex.PW9/D1 to point B and of P.S. Khullar (A13) at Ex.PW9/D3 point C. This note was marked to ZM, (statements of Chandigarh. PW9 under He also proved page 2 of file D-85 i.e. Section 161 Cr.P.C a letter dated 24.07.1991 addressed to dated 10.03.1997, zonal manager Chandigarh, bearing 04.04.1997 and his signature at point A on it. 17.05.1997) He also identified his signature on internal page no. 31 I.e. Ex.PW-12/1 of D-4, at point C. He proved his statements under Section 161 Cr.P.C dated 10.03.1997, 04.04.1997 and 17.05.1997. He also identified Ex.PW8/DX10, Ex.PW8/DX 11 and Ex.PW8/DX12.
PW-10/ He was working as Assistant Area Ex.PW-10/1 (letter Sh. Anil Manager in Central Marketing Office dated 22.06.1990 Page 17 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) Motsara NFL, New Delhi and was dealing with (page 2 & 3 of file logistic department of NFL, which was D-75));
handling transportation and Ex.PW10/2 (office
warehousing. order dated
He proved the letter dated 22.06.1990 26.06.1990 (D-75) (page 2 & 3 of file D-75), which was an bearing reference office order regarding sub delegation of no. power to General Manager (M) at SEC/6.32/DGM(M corporate office. He identified signature ktg.)I/C); of Sh. C.K. Ramakrishnan, the then Director (Finance) and Acting Managing Director at point A on it.
He also proved office order dated 26.06.1990 (D-75) bearing reference no. SEC/6.32/DGM(Mktg.)I/C and identified signature of Sh. C.K. Ramakrishnan, the then Director (F) & acting MD at point A on it.
He identified Ex.PW29/C (AD4) i.e. guidelines for hiring private godowns, which was applicable till new marketing manual came in the year 1998.
PW-11/ He worked as Sr. PS/Sr. Ex.PW-11/1 (file Sh. G.S. Stenographer/PA in NFL, Karnal from D-8 i.e. a delivery Raheja 1972 to 2000 and during this aforesaid order no.5501 tenure, he remained posted at Delhi dated 22.07.1991); office for a period of one year as PS to Ex.PW11/2 and D.S. Kanwar (A2), who was the then Ex.PW11/3 (file D- Dy. G.M. (M) (Incharge) at Delhi for 2-3 9 i.e. a delivery months, with Manager (F&A), order no.5502 and Personnel Manager and Law Officer file D-10 i.e. and Administration Department for the deliver order remaining 9 months. no.5503, both He proved file D-8 i.e. a delivery order dated 22.07.1991); no.5501 dated 22.07.1991 in the name Ex.PW11/4 (file D- of M/s AAR KEY Enterprises, Ambala 14 i.e. a delivery having party code as A-1024 and order no.5122 identified signature of accused Ashok dated 23.07.1991); Kumar (the then DO) at point A on it.
Ex.PW11/5 (file D-
He also proved file D-9 i.e. a delivery 15 i.e. a delivery order no.5502 and file D-10 i.e. deliver order no.5101 order no.5503, both dated 22.07.1991 Page 18 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) mentioning party name as M/s AAR dated 03.07.1991); KEY Enterprises, Ambala having party Ex.PW11/6 (file D- code as A-01024 and identified 16 i.e. a delivery signature of Sh. Ashok Kumar (the order no.5104 then AAM) at point A at two places, on dated 11.07.1991); both delivery orders.
Ex.PW11/7 (file D-
He also proved file D-14 i.e. a delivery 17 i.e. a delivery order no.5122 dated 23.07.1991, file order no.5107 D-15 i.e. a delivery order no.5101 dated 13.07.1991); dated 03.07.1991, file D-16 i.e. a delivery order no.5104 dated 11.07. Ex.PW11/8 (file D- 1991, file D-17 i.e. a delivery order no. 18 i.e. a delivery 5107 dated 13.07.1991, file D-18 i.e. a order no.5110 delivery order no.5110 dated 17.07. dated 17.07.1991); 1991, file D-19 i.e. a delivery order no. Ex.PW11/9 (file 5121 dated 23.07.1991 and file D-20 D19 i.e. a delivery i.e. a delivery order no.5117 dated order no.5121 22.07.1991, all mentioning party name dated 23.07.1991);
as M/s AAR KEY Enterprises; Ambala Ex.PW11/10 (file having party code as A-01024. He also D-20 i.e. a identified signature of Sh. Ram Tirath delivery order (A5) at point A on all delivery orders.
no.5117 dated He identified and proved encircled 22.07.1991);
portion of note dated 28.03.1991 on
Ex.PW11/11
page 4 of file D-4 in the handwriting
(encircled portion
and under signature of Sh. D.S.
of note dated
Kanwar (A2), pertaining to Private
28.03. 1991 on
Buffer, Ambala.
page 4 of file D-4
He identified Ex.PW8/B i.e. a note in the handwriting dated 12.03.1991 made on page 2 of and under file D3 in the handwriting and under signature of A2); signature of A2 at point D encircled portion.
He also identified Ex.PW11/12 i.e. a note dated 25.07.1991 made on page 52 of file D90 in the handwriting and under signature of A2 at point A encircled in red portion.
Page 19 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) PW-12/ He was posted as AAO in the Zonal Ex.PW12/1 Sh. K. Office of NFL, Chandigarh in the year (resolution Sukhdev 1991. He used to scrutinize any prepared by a Singh proposal received in Accounts Branch committee of and thereafter, same was sent to NFL);
Senior Officer. He scrutinized some Ex.PW12/2 documents related to M/s R.K. (survey report Roadlines during this year. (part of D-4)) He identified and proved a resolution Ex.PW-12/3 prepared by a committee of NFL with (noting of PW12 regard to negotiations for handling from points Y to Y1 charges and standardization of rates of on file (part of D-
private godown offered by M/s R.K. 4));
Roadlines. Being member of this
committee, he identified his signature Ex.PW12/D1
at point A, signatures of other (letter dated
members namely Sh. Ashok Kumar 25.07.1990 (part of
and Sh. P.K. De, who had signed this D2));
resolution in his presence at points B & C respectively on it. He proved a survey report (part of D-4) for hiring of private godown in Ambala City, which was prepared by Sh. Ram Tirath, Sh. Ashok Kumar & by him. This report was also concerning the offer given by M/s R.K. Roadlines to provide godown in Ambala City. He identified his signature at point A and signatures of Sh. Ram Tirath (A5) and Sh. Ashok Kumar at points B & C respectively.
He identified noting dated 21.03.1991 of the file (part of D-
4), prepared by Sh. Ashok Kumar and sent to him for scrutiny and after scrutinizing the same, he (PW12) gave his note from point Y to Y1 and signed the same at point A. The noting given by Sh. Ashok Kumar runs from point X to X1.
He identified noting of A2 on Ex.PW-11/11. He proved letter dated 25.07.1990 (part of D2).
PW-13/ He was posted in Ambala as Ex. PW-13/1 Sh. V.K. Development Officer In the year 1991, (entries made on Page 20 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) Bhatia where he used to maintain register of page no. 33 & 34 delivery order and used to make in warehouse entries in that register as he was register (D-92)); dealing with all those persons related with delivery of their product.
He identified and proved entries made in warehouse register (D-92) pertaining to the record of delivery orders issued from all warehouses situated in district Ambala. The entries related to delivery order nos. 5148 dated 03.12.91, 5149 dated 07.12.91, 5154 dated 17.12.91, 5157 dated 19.12.91, 5161 dated 24.12.91, 5166 dated 31.12.91, 5147 dated 30.11.91, 5144 dated 28.11.91, 5139 dated 16.11.91, 5179 dated 09.01.92, 5186 dated 18.01.92, 5194 dated 31.01.92 and 6455 dated 04.02.92, were made by him in this register, which appear on page no. 33 & 34 of this register. All the aforesaid delivery orders were in favour of M/s AAR KAY Enterprises and he had issued these deliveries orders being Development Officer.
PW-14/ In the year 1991, he was posted as Assistant Development Sh. Officer, Karnal, Haryana. Pawan On 23/24 July 1991, he received a call from Mr. Kanwar Kumar (A2) from Delhi, who asked him to convey message to Mr. Kapila Khullar (A13) at Kurukshetra to talk to him. Accordingly, he
conveyed the message to Mr. Khullar (A13). PW-15/ In the year 1990, she was posted as Ex.PW15/1 (office Smt. Assistant Area Manager in Dealer note (D66));
Sunita Section in the Central Marketing Office Ex.PW-15/2
Vivek of NFL at New Delhi. (carbon copy of
On 01.10.1990, she was called by Mr. letter dated
Kanwar (A2) in his office, who handed 04.10.1990); over one already filled application on Ex.PW-15/3 behalf of M/s AAR KAY Enterprises for (memo dated dealership alongwith draft of Rs. 16.05.97 i.e. D64); 10,000/- and told her to prepare a note for grant of dealership. Ex.PW-15/4 (colly.
three sheets) In the case of M/s AAR KAY (page no. 16 to 14 Enterprises, she was instructed by A2 of file D-2); to grant dealership immediately, Page 21 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) therefore, she prepared a note for Ex.PW-15/5 (colly. approval, put up the same before Mr. three pages) (page Kanwar (A2) after the same was no.12 to 14 of the recommended by Mr. Anil Sharma. She file D-3); alongwith Mr. Anil Sharma went Ex. PW-15/6 (colly together to the office of Mr. Kanwar three pages) (page (A2) to put up the aforesaid note no.9 to 11 of D-3); before him.
Ex. PW-15/7
She identified and proved the office (page no.8 of D-3);
note (D66) prepared by her, vide which
she had recommended for grant of Ex.PW-15/8 (page
adhoc dealership to M/s AAR Kay no.3 of D-3);
Enterprises upto 30.03.1991. She also Ex.PW-15/9
identified her signature at point X on it. (statement given She also identified note of Sh. Anil by PW13 before Sharma with his signature at point Y, Magistrate, at Tis following her note Ex.PW-15/1. She Hazari Court, Delhi also identified handwriting and on 17.11.2001); signature of Sh. D.S. Kanwar (A2) Ex.PW-15/10 (file made in red ink at point Z on the note D-11);
following the note of Sh. Anil Sharma.
Mr. D.S. Kanwar (A2) in his note Ex.PW-15/11 (file approved adhoc dealership to M/s AAR D-12); KAY Enterprises upto 31.03.1992. Ex.PW-15/12 (file She prepared a new typed note as per D-13);
instructions of Sh. D.S. Kanwar (A2), Ex.PW-15/13 (file thereby omitting date of 30.03.1991 in D-21); this note, which was put to Sh. Anil Sharma and thereafter to Sh. D.S. Ex.PW-15/14 (file Kanwar as Mr. Kanwar had objected to D-22); handwritten noting and date of Ex.PW-15/15 (file 30.03.1991. D-23);
She also identified the typed note Ex.PW-15/16 (file prepared by her on page 13 (part of D- D-24);
2) which is Ex.PW-8/A. Ex.PW-15/17 (file She also identified note given by Mr. D-25); Anil Sharma appearing after her note Ex.PW-15/18 (file and thereafter, note of Sh. D.S. D-26);
Page 22 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) Kanwar made in his handwriting Ex.PW-15/19 (file (encircled at point A) bearing signature D-29);
of Mr. Kanwar at point X. This note was Ex.PW-15/20 (file
put up before Mr. Kanwar on D-30);
01.10.1990 and he approved it on
03.10.1990. Her handwritten note was Ex.PW-15/21 (file
approved by Mr. Kanwar on D-31);
01.10.1990 itself. Ex.PW-15/22 (file
She also identified D65 i.e. a carbon D-32); copy of letter dated 04.10.1990 written Ex.PW-15/23 (file and sent by her to M/s AAR Kay D-36);
Enterprises, thereby demanding 2-3 Ex.PW-15/24 (file documents in support of their D-37);
application. She identified her signature on it at point X. Original letter Ex.PW-15/25 (file was sent to party. D-38);
She also identified and memo dated Ex.PW-15/26 (file 16.05.97 i.e. D64. She also identified D-39); her signature at point X on it, vide Ex.PW-15/27 (file which she had handed over aforesaid D-40); letter dated 04.10.1990 as well as a handwritten note to CBI officer. Ex.PW-15/28 (file D-33);
On 31.10.1990, she was again called by Mr. Kanwar (A2) in his chamber and Ex.PW-15/29 (file A2 asked her that despite his approval, D-34);
why did not she issue the dealership Ex.PW-15/30 (file
appointment letter to M/s AAR KAY D-35);
Enterprises, to which she told that the
Ex.PW-15/31 (file
file was incomplete and all requisite
D-45);
documents were not placed in the file.
Mr. Kanwar was annoyed and he Ex.PW-15/32 (file
instructed her to immediately issue the D-46);
appointment letter stating that he had Ex.PW-15/33 (file
instructed the field officers to send the D-47); documents.
Ex.PW-15/34 (file On 31.10.1990, she was again called D-48); by Mr. D.S. Kanwar (A2) in his chamber for giving instructions to Ex.PW-15/35 (file D-50);
Page 23 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) immediately issue appointment letter to Ex.PW-15/36 (file M/s AAR KAY Enterprises. A2 further D-51); told her to do as per instructions given Ex.PW-15/37 (file by him, as he (A2) had to run the D-43);
company. Mr. Kanwar further warned her to issue the appointment letter on Ex.PW-15/38 (file the same day. Having no other option D-44); left, as she was quite junior to Mr. Ex.PW-15/39 (file Kanwar, she issued appointment letter D-49); on same day in favour of M/s AAR KAY Enterprises, as per approval given by Mr. D.S. Kanwar (A2), on adhoc basis. However, the procedures were not complete by that time as complete documents were not furnished. She also identified note dated 01.10.1990 i.e. Ex. PW-8/A, which was prepared by her from point A1 to A2. She identified Ex.PW-8/DX1 i.e. recommendation appearing on page 12 of file D2, which was given by Mr. Ram Teerath Diwedi (A5) and approved by Mr. Durgesh Narain. She also identified signatures of Mr. Diwedi (A5) at point A and signature of Mr. Narain at point B. The recommendation of Mr. Ram Teerath was undated and was approved by Mr. Durgesh Narain on 19.09.1990. She also identified Ex.PW-8/DX2, Ex.PW-8/B & Ex.PW- 9/A. She also identified her signature at point X on the first page of letter of appointment issued to M/s AAR KAY Enterprises, placed at page no.16 to 14 in D-2 and proved letter of appointment. She further identified her endorsement encircled at point Y. She identified and proved the appointment letter issued in favour of M/s Kuber Traders on 15.03.1991, placed on page no. 12 to 14 of file D-3. The first page of this letter bears her endorsement point A to A1 alongwith her signature at point X. This letter is office copy. Last page of this letter also bore her signature at point X and O/C on the same was written by her. This firm was given dealer number as A-1040.
Page 24 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) She also proved application form of M/s Kuber Traders appearing from page 9 to 11 of file D-3, which bears her noting from point A to A1 and her signature at point X. There is no change in dealer number of this firm. She also identified and proved office copy of letter dated 22.03.1991 written by her at page no.8 of D-3, bearing her signature at point X. Original letter was sent to M/s Kuber Traders. Vide this letter, she asked to furnish the required documents.
She identified and proved the recommendation given by Mr. Sardari Lal/DO Kurukshetra (A6) appearing on page no. 3 of D-3. She also identified signature of Mr. Sardari Lal appearing at point X. She proved her statement given before a Magistrate namely Mr. Deepak, at Tis Hazari Court, on 17.11.2001 and identified her signature on page no.5 of the statement. She also identified and proved file D-11 i.e. delivery order no.5209 dated 20.07.1991 for an amount of Rs.5,68,055/-, file D-12 i.e. delivery order no.5207 dated 18.07.1991 for an amount of Rs.2,18,790/-, file D-13 i.e. delivery order no.5208 dated 19.07.1991 for an amount of Rs.3,14,182.50/-, file D-21 i.e. delivery order no.5259 dated 17.07.1991 for an amount of Rs.76,219.20/-, file D-22 i.e. delivery order no.5274 dated 24.07.1991 for an amount of Rs.81,472/-, file D-23 i.e. delivery order no.5283 dated 24.07.1991 for an amount of Rs.10,72,000/-, file D-24 i.e. delivery order no.5284 dated 24.07.1991 for an amount of Rs.10,72,000/-, file D-25 i.e. delivery order no.5285 dated 24.07.1991 for an amount of Rs.10,72,000/-, file D-26 i.e. delivery order no.5286 dated 24.07.1991 for an amount of Rs.15,42,822.40/-, file D-29 i.e. delivery order no.5255 dated 16.07.1991 for an amount of Rs.2,33,052.80/-, file D- 30 i.e. delivery order no.5212 dated 22.07.1991 for an amount of Rs.7,67,816/-, file D-31 i.e. delivery order no.5211 dated 22.07.1991 for an amount of Rs.6,43,200/- and file D-32 i.e. delivery order no.5210 dated 22.07.1991 for an amount of Rs.6,43,200/-, all in favour of M/s AAR KEY Enterprises; vide party code as A-1024 for the product Page 25 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) of Kishan Urea. She also identified signature of Sh. Gurmej Singh (A8) at point X on each delivery order. She also identified and proved file D-36 i.e. delivery order no.5213 dated 22.07.1991 for an amount of Rs.13,57,600/-, file D-37 i.e. delivery order no.5214 dated 22.07.1991 for an amount of Rs.14,93,360/-, file D-38 i.e. delivery order no.5215 dated 23.07.1991 for an amount of Rs.10,18,200/-, file D-39 i.e. delivery order no.5216 dated 23.07.1991 for an amount of Rs.10,76,251.90/- and file D- 40 i.e. delivery order no.5235 dated 24.07.1991 for an amount of Rs.3733.40/-, all in favour of M/s AAR KEY Enterprises; vide party code as A-1024 for the product of DAP. She also identified signature of Sh. Gurmej Singh (A8) at point X on each delivery order.
She also identified and proved file D-33 i.e. delivery order no.5461 dated 22.07.1991 for an amount of Rs.4890/-, file D-34 i.e. delivery order no.5462 dated 22.07.1991 for an amount of Rs.4890/- and file D-35 i.e. delivery order no.5460 dated 22.07.1991 for an amount of Rs.3,30,000/-, all in favour of M/s AAR KEY Enterprises; vide party code as A-1024 for the product of Kishan Urea. She also identified signature of Sh. B.M. Jagota (A12) at point X on each delivery order.
She also identified and proved file D-45 i.e. delivery order no.5032 dated 23.07.1991 for an amount of Rs.3,21,600/-, file D-46 i.e. delivery order no.5033 dated 23.07.1991 for an amount of Rs.2,14,400/-, file D-47 i.e. delivery order no.5035 dated 23.07.1991 for an amount of Rs.1,60,800/- and file D-48 i.e. delivery order no.5038 dated 23.07.1991 for an amount of Rs.1,88,886.40/-, file D-50 i.e. delivery order no.5051 dated 21.07.1991 for an amount of Rs.5,36,000/-, file D-51 i.e. delivery order no.5052 dated 23.07.1991 for an amount of Rs.6,43,200/- and file D-43 i.e. delivery order no.5321 dated 23.07.1991 for an amount of Rs.2,19,800/- (amount is not clear as some part of it is erased); all in favour of M/s Kuber Traders; vide party code as K-1040 for the product of Kishan Urea. She also identified signature of Mr. Sardari Lal (A6) at point X on each delivery order.
Page 26 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) She also identified and proved file D-44 i.e. delivery order no.5411 dated 23.07.1991 for an amount of Rs.24,56,704.60/- and file D-49 i.e. delivery order no.5409 dated July 1991 (date is not legible) for an amount of Rs.82,534.90/-; both in favour of M/s Kuber Traders; vide party code as K-1040 for the product of Kishan Urea. She also identified signature of Mr. Rajbir Kajal (A7) at point X on both delivery order.
PW-16/ In the year 1990-91, he was posted at Ex.PW-16/A Sh. Babu NITCO Roadways Pvt. Ltd., Ambala as (internal page 3 of Singh Branch Incharge and he and Sh. Ashok file D6);
Kumar used to look after the work in Ex.PW-16/B the absence Sh. Ramesh Raj Sharma (internal page 9 of (Accountant) and Sh. Ashok Kumar file D-7); (General Duty Clerk).
He proved internal page 3 of file D6 i.e. a letter addressed to Area Manager, NFL Kurukshetra on the company letter head.
He also proved internal page 9 of file D-7 i.e. quotation for loading and unloading of the articles given on company letter head.
PW-17/ He was Chief Manager of SBI Ambala Branch. Sh. J.M. He identified a letter i.e. file D-71 bearing his signature at Chadha point X, which was sent by CBI officer to him.
He also identified his signature at point X on a receipt memo dated 11.08.1997, bearing description of documents delivered by him after putting his attestation. He also identified documents i.e. copies of three account opening forms in the name of R.K Roadlines, Kuber Traders and AAR KAY Enterprises respectively; partnership letter of R.K. Roadlines; partnership deed of R.K. Roadlines; power of attorney executed by Ms. Rajni Handa of R.K. Roadlines in favour of Sh. Subhash Handa S/o Sh. K.L. Handa; partnership letter for AAR KAY Enterprises and power of attorney executed by Ms. Rajni Handa and Kunal Madhukar in favour of Sh. Subhash Handa, which were annexed alongwith aforesaid memo and which bore his Page 27 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) attestation at point X respectively PW-18/ In June 1994, he was working as Assistant Grade-II at Sh. Om Head Quarter, FCI, New Delhi.
Prakash He identified file D-88 i.e. search cum seizure memo (running in 7 pages) dated 14.06.1994 prepared at premises no. A379, Pocket-C, Vasant Kunj, New Delhi. He also identified his signature appearing at point X on each page with date of 14.06.1994.
He also identified his signatures on D-83 (Ex.PW8/DX4) and D-89 (Ex.PW4/1) at point X. PW-19/ In the year 1997, he was posted as Ex.PW19/1 (colly Sh. Raj Officer Board in the NFL Company 9 pages) (internal Kumar Secretariat, Delhi. page nos.21 to 29 He supplied copies of board agenda of file D-75); and extract of minutes related to that Ex.PW19/2 (total 7 agenda, delegation of powers of pages) (file D-77); General Manager (Marketing) to CBI Ex.PW19/3 (file D- officer, under his attestation. 77 (last page i.e. page no.8)).
PW19 produced two original office orders both dated 26.06.1990 i.e. D-75 (internal page no.18 & 19) and proved copy of the same as Ex.PW10/2 and Ex.PW10/1. He identified his attestations at point X with his signature and seal, on both documents.
He brought original schedule attached with office order dated 22.06.1990, related to powers exercised by GM (Marketing) and compared true copy of D-75 (internal pages no. 21 to 29). He identified and proved the same. He also identified his attestation at point X with his signature and seal on the last page of copy of this schedule. He also brought original agenda for board meeting dated 05.04.1980 related to appointment of dealers in NFL-policy and procedure thereof and compared copy of file D-77 (total 7 pages). He identified and proved the same. He also identified his attestation at point X with his signature and seal on the last page of the same.
Page 28 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) He also brought original board resolution dated 05.04.1980 related to appointment of dealers in NFL-policy and procedure thereof and compared its extract i.e. file D-77 (last page i.e. page no.8). He identified and proved file D- 77 (last page i.e. page no.8). He also identified his attestation at point X with his signature and seal on extract of board resolution dated 05.04.1980.
PW-20/ He was posted in Central Marketing Ex.PW-20/A (colly Sh. Office (CMO). three pages) Suresh (forwarding letter Chand dated 07.07.2017);
PW20 proved a forwarding letter dated 07.07.2017, in respect of handing over of copy of report/proceedings to CBI. This report/proceedings were submitted by Officials of HR Department to CMO in relation to document with regard to terms of sale of NFL urea to private trade, during Kharif 1991 in the State of Haryana. He also identified his signature at point A on all three pages.
He was witness to handing over of the original proceedings to CBI officer on 15.09.2017 alongwith forwarding letter of Sh. R.K. Gogia.
PW-21/ In June 2017, he was working as Ex.PW-21/A Sh. Varun Assistant Manager (HR), NFL, (report given by a Bagai Corporate Office. committee of three officials) PW21 also identified his signature at point A on office copy of aforesaid IOMs dated 08.06.2017, 16.06.2017 and 26.06. 2017.
He also proved report related to Subhash Handa's case, which was given by a committee of three officials comprising himself, Mr. Mahavir Singh (Chief Manager-HR) and Ms. Jaya Dixit. He also identified his signature at point A on the same.
PW-22/ In June 2017 she was posted as DGM Ex.PW-22/A (IOM Ms. Jaya (HR) NFL. dated 08.06.2017); Dikshit She proved IOM dated 08.06.2017 Ex.PW-22/B (IOM
written by her to marketing division and dated 16.06.2017);
Page 29 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) vigilance department to look for Ex.PW-22/C (IOM document pertaining to Urea sale dated 26.06.2017); terms in Kharif 1991, in their records. Ex.PW-22/D She also identified her signature at (memo dated point X on the same. 27.06.2017);
She also proved IOM dated Ex.PW-22/E (IOM 16.06.2017 written by her to marketing dated 07.07.2017);
division and vigilance department, so as to extend the time to search aforesaid document. She also identified her signature at point X on the same.
PW22 also proved a reminder i.e. IOM dated 26.06.2017 written by her to marketing and vigilance department to trace the aforesaid original document. She identified her signatures on the same at points X, Y and Z. She also proved search memo dated 27.06.2017, issued by the then ED(HR) namely Mr. Manoj Kumar Aggarwal. She identified his signature at point X on the same. She was member of committee comprising of PW21, Mr. Mahavir Singh and herself, to search for the aforesaid document.
She also identified her signature at point X on Ex.PW21/A. She also proved OM dated 07.07.2017 for sending attested copies of all the documents related to search made for IOMs and search memo, to Marketing Division. PW-23/ In July 2005, he was posted as Ex.PW23/A (IOM Sh. K.B. General Manager (HR) NFL. dated 21.07.2005); Verma PW23 proved IOM dated 21.07.2005, which was issued by him. He also identified his signature on the same. He had received back this memo with comments from CGM, Marketing and thereafter, he sent the memo to his sub-ordinate officials for further action in view of comments from marketing division. He identified his signature for this purpose at point Y on the aforesaid note. Thereafter, he forwarded proposal of sub-ordinate officials to obtain the Page 30 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) documents from vigilance department, vide his initial appearing at point Z. It was again received by him with comments from vigilance department through his senior, wherein it was mentioned that the concerned documents were already handed over to the then ED (P&A). He identified his signature at point Z1 on the back side of Ex. PW23/A, vide which he marked the aforesaid note to his sub-ordinate official.
He again received aforesaid note from his sub-ordinate official mentioning that some documents were lying with zonal office, Chandigarh, which could have been obtained by PO from the concerned office. A copy of original sale terms was sent for handing over the same to PO. He identified his signature appearing at point Z2 on the aforesaid note.
PW-24/ He was appointed as Enquiry Officer in Ex.PW24/A Sh. A.K. a few cases by NFL, including in the (ordersheet dated Garde case of Subhash Handa. 17.10.2005);
He identified ordersheet dated 17.10.
2005 on the basis of his signature appearing at point Y. He also identified the term "Ex.P3 (common to all)"
written with red ink in his handwriting, bearing his signature at point/encircle X. PW-25/ He was posted as Chief Manager (HR) NFL, Noida and Sh. dealt with disciplinary proceedings in Subhash Handa case Mahabir in the year 2005, as Dy. Manager (HR). Singh PW25 alongwith his staff searched for this document in the records of departmental enquiry in this case. He identified report Ex.PW21/A prepared by search committee and his signature at point B on the same. He also identified three annexures i.e. Ex.PW23/A, Ex.PW4/10 and Ex.PW 24/A, which were submitted along with Ex.PW21/A, containing noting in his handwriting on the back side from point X to Y. He also identified his Page 31 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) signature at point Z3 on it.
PW-26/ He was transferred to Kurukshetra Area Office as Junior Sh. Assistant (Accounts) in August 1987 and remained there Yashpal upto April 1991. In April 1991, he was transferred to Karnal, Singh Regional Office as Sr. Assistant and remained there up to Rana 1998.
He used to deposit all the cheques and demand drafts in bank, as received by him from Area Manager and these cheques & drafts were used to send to his Area Manager by all District Incharges under Kurukshetra Area Office. He also used to check TA bills, transportation bills, handling bills and other miscellaneous expenses of the Area Office. These bills used to be of complete area under Kurukshetra Area Office He also used to maintain imprest account of Kurukshetra Area Office and to send report to Zonal Office, on the basis of which fresh funds were released by Zonal Office. At the end of every financial year, all development officer from the area used to come to him with their respective registers of dealers (above-mentioned manual registers) for reconciliation of entries made therein with the computerised record received from Central Marketing Office in his office. At that time, as per situation, he used to look into these registers in order to reconcile the balance. He also used to reconcile balance of amount against supply of the materials and receipt of payments. The balance included debit and credit of amount against any dealer at any particular time.
His main job was to support Regional Incharge in approvals and concurrence. Such bills were approved in Regional Office, which were beyond powers of Area Incharge. He used to give concurrence on the parameters of rules and delegation of powers in NFL to Regional Manager, whenever any bill for approval was received in their office from Area Offices of Haryana State. PW-27/ In the year 1980 he was posted in Ex.PW27/A (AD1-
Sh. Din Delhi HQ as DGM (Finance & 3(i));
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Dyal Marketing).
Verma
As DGM (F & M), he used to circulate the policy and procedure to other branches of NFL.
He proved document AD1-3(i), through which he had circulated agenda i.e. Ex.PW19/2. He identified his signature at point X on the same.
PW-28/ In the year 1994 he was posted as Dy. Ex.PW28/A (AD-
Sh. Manager (Marketing) at Central 25); Jatinder Marketing Office, New Delhi. In Mohan October 1994, he was given charge of Kapoor Sales and Distribution Branch of CMO.
He identified Ex.PW-19/2 as the guidelines of NFL for appointment of regular dealer.
He identified signature of Mr. Kanwar at point Y on Ex.PW24/A. He proved document AD-25, which was prepared, when CBI officer had come to his office and the documents mentioned were handed over to him. He identified his signature at point X on this document.
PW-29/ In the year 1994, he was posted as Ex.PW-29/A (AD- Sh. Gopi Assistant Manager (Vigilance) in 27); Chand Central marketing office, NFL, New Ex.PW-29/B (AD-
Delhi. In the year 1995, he was 30);
promoted as Dy. Chief Vigilance Officer
and retired on 31.01.1997 in the same Ex.PW-29/C (AD-
capacity. 4)
He proved document AD-27 i.e. seizure memo, which was prepared in the case of Subhash Handa for seizure of certain documents given by him. He identified his signature on AD-27 at point X. He also proved document AD-30 i.e. seizure memo in respect of guidelines of marketing in NFL etc. He identified his signature at point X on AD-30.
He also proved AD-4 i.e. copy of guidelines of marketing in NFL, which was handed over by him to CBI officer after attestation in the case of Subhash Handa. He identified his Page 33 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) signature at point X on each page as mark of attestation by him.
He had prepared Ex.PW29/A i.e. seizure memo.
PW-30/ He joined NFL in the year 1979 as accounts clerk at Sh. Chandigarh. Thereafter, he was transfer from Gwalior to Pramod Kurukshetra in 1991. Kumar He used to receive drafts from District Incharge, which Suri were used to be collected by District Incharge from the
dealers and he used to send them to area office Kurukshetra. Area Incharge used to hand over the same to the account branch and the account branch used to generate and give CRV Number to each draft and thereafter, same were deposited in the bank. He used to receive transportation bills and private godown bills. After checking the bills he used to send bills at Chandigarh. He also used to check the rate applied by the Vendor and the quantity shown, so as to check the correctness of the amount.
PW-31/ He was posted as Asstt. Account Officer in CMO, NFL, Sh. Satish New Delhi during 1990-91. He was working as Jr. Kumar Executive (Accounts). During his posting at Karnal Jain Regional office, a committee was formed for hiring of Pvt.
Godown at Yamuna Nagar. This committee comprised of four members and he was representative from account branch. All members of this committee had inspected a Pvt. Godown, Yamuna Nagar for fulfilled the criteria of NFL. He identified his signature at point D on the report i.e. Ex.PW7/3 (D-90 page 80/16), which was given by the committee after inspection of private godown at Yamuna Nagar.
PW-32/ During the period 1990-92, he was Ex.PW32/A (Note
Sh. Ashok posted at Zonal Office Chandigarh in of Sh. S.M. Kaura
Kumar the Logistic Department as a Private D-90 (page no.53/
Secretary. He was the member of the 52));
inspection Committee of Godown for Ex.PW32/B (Note
handling and transportation contract. of Sh. S.M. Kaura
During this period he inspected on the back side of
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concerned private godown belonging D-90 (page no.53/ to some AAR KAY Enterprises or like 52));
that. Ex.PW32/C (note He identified his signature at point A on from points A to B D-90 (page no.53/52) i.e. Ex.PW7/2. on D4 (page He also identified note Ex.PW11/12, no.2)); which was written by Sh. D.S. Kanwar. Ex.PW32/D (page He proved notes of Sh. S.M. Kaura on no.2 of Ex.PW3/D D-90 (page no.53/52) at portion X and 1, containing note on its back from points D to E. He also of Sh. S.M. Kaura identified handwriting and signature of from points D to Sh. S.M. Kaura at point Y on note D-90 E);
(page no.53/52) and on its back at Ex.PW32/E (D4
point F. (page no.3));
He also identified his signature at point Ex.PW32/F (D4
B on D-90 (page no.80) i.e. Ex.PW7/3. (back side of page He proved his note from points A to B no.3));
on D4 (page no.2) and identified his Ex.PW32/G (D7
signature at point C on it. (page no.5));
He identifirf page no.1 containing initial Ex.PW32/H (note of Sh. S.M. Kaura at point B on note of PW32 from Ex.PW3/D1. He also identified page points D to E on no.2 containing note of Sh. S.M. Kaura the back side of from points D to E and his signature D7 (page no.5));
and initial at point F and proved the
same. Ex.PW32/I
(forwarding note of
He also proved file D4 (page no.3), Sh. Kaura from containing office note from points A to points G to H on B in his handwriting. He also identified back side of D7 his signature at point C on it. (page no.5)); He also proved D4 (back side of page Ex.PW32/J (note no.3) i.e. note prepared by him for of PW32 on D7 negotiation of rates regarding storage (page no.6));
charges, handling charges and standardization charges of private Ex.PW32/K (note godown at Ambala. He identified his of Sh. D.S. signature at point Z beneath noting Kanwar on the Page 35 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) from points X to X1. back side of D7 He also identified Ex.PW11/11, Ex.PW (page no.6)); 12/1 & Ex.PW12/2. Ex.PW32/L (note He also proved file D7 (page no.5) i.e. related to contract note of Sh. S.M. Kaura from point A to for transportation B. He also identified signature of Sh. at Ambala on D6 S.M. Kaura on this note at point C. (back side of page no.1));
He also proved his note appearing from points D to E on the back side of Ex.PW32/M (note D7 (page no.5). He identified his of Sh. D.S.Kanwar signature at point F on the same. He made at point A on also proved forwarding note of Sh. D6 (page no.2)); Kaura from points G to H on it. He Ex.PW32/D1 identified signature of Sh. Kaura on (proposal in point I. respect of only one He identified his signature at point X, rake point at beneath a note, which was prepared Ambala); by him from points A to B on D7 (page no.6) and proved the same.
He also identified signature of Sh. D.S. Kanwar at point C on the back side of D7 (page no.6) and proved the note of Sh. D.S. Kanwar from points A to B on the same. He also proved note related to contract for transportation at Ambala on D6 (back side of page no.1) and identified his signature at point X beneath this note.
He also proved approval note of Sh. D.S. Kanwar approving Ex.PW32/L, made at point A on D6 (page no.2). He also identified signature of Sh. D.S. Kanwar at point B on it.
He also proved note i.e. proposal in respect of only one rake point at Ambala.
PW-33/ In the year 1991, he was transferred to Ex.PW33/A (D-90, Sh. R.K. Chandigarh Marketing Office, NFL on page 70-75); Khanna the post of Dy. Manager and later on he was promoted as Addl. Manager.
He used to send proposal regarding requirement of Page 36 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) fertilizer in the particular area, to plants for the purpose of execution, as pertaining to Punjab & Haryana & Himachal Pradesh.
In 1991, Zonal Manager, Mr. R.C. Kathpal received a request from Mr. Handa of M/s R.K. related to offer of Pvt. Godown. Mr. R.C. Kathpal, Zonal Manager marked the request in the form of a letter to him to process the request and accordingly he formed a committee comprising 4-5 members including one Mr. Pathak.
He identified his endorsement with his signature at encircle C on Ex.PW-7/1 i.e. D-90 (page-81).
He identified his signature at point X on offer letter to M/s R.K. Roadlines (D-90, page 70-75) and proved said offer letter. Ex.PW33/A was sent on the basis of approval for private godown at Yamuna Nagar.
PW-34/ He was posted as Assistant Vigilance Ex.PW-34/A (colly. Sh. C.L. Officer during 1990-92. From 1992- 3 pages) (D-70 i.e. Sharma 1996, he was posted as Vigilance seizure memo Officer in NFL, New Delhi. dated 24.06.1994). He used to deliver documents to CBI Ex.PW-34/B (AD- officer on their demand after approval 26 i.e. seizure of Director Vigilance and it was so memo dated given to them in more than one case. 14.10.1996); He proved D-70 i.e. seizure memo dated 24.06.1994 (running into three pages). He identified his initial on first two pages at point X and signature at point Y on last page. He was witness to preparation of said seizure memo. He also proved AD-26 i.e. seizure memo dated 14.10.1996, which was prepared in his presence. He identified his signature at point X on it. PW-35/ During the period 1990-92, he was posted as Assistant Sh. Area Manager (Marketing) at Delhi. As AM, he was working Eklavia in the Sales and Distribution Department at Delhi. Verma He identified the office note i.e. Ex.PW8/C, which was prepared by him for proposal for appointment of dealer under Assured Off-take Scheme. He identified his signature at point A on it.Page 37 of 80 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) He identified handwriting and signature of Mr. Anil Sharma and Mr. D.S. Kanwar on Ex.PW8/C. He also identified approval note of Mr. D.S. Kanwar from point X to Y on page 2 and identified signature of Mr. D.S. Kanwar at point C on it.
He also identified his signature at point A on Ex.PW8/D i.e. letter dated 31.10.1990. He also identified his signature at point Y on Ex.PW24/A. PW-36/ In 1996, he was posted as Dy. SP in ACB, CBI, New Delhi Sh. Hem and remained in this position till 1997. Chand He conducted the part investigation of the case and during Bisht the course of investigation he had recorded the statement of certain witnesses and collected the documents vide seizure memos.
He identified his signature on seizure memo dated
17.04.96, Ex.PW28/A (AD -25) at point Y; seizure memo dated 14.10.96, Ex.PW34/B at point Z; seizure memo dated 22.04.96, Ex.PW 29/B at point Y and seizure memo dated 17.11.96 at point B. PW-37/ During year 1985 he was looking after the marketing work Sh. G.R. of NFL for the states i.e. Madhya Pradesh, Rajasthan and Kaura Uttar Pradesh.
He identified his signature at point X on first page of Ex.PW 29/C. PW-38/ In the year 1997, he was posted as Ex.PW-38/A (D- Sh. Accountant in Haryana Agro Industries 73(D) containing Surender Corporation Ltd. at Ambala. voucher); Kumar He proved file D-73(D) containing no.1920/3/92); Sharma voucher no.1920/3/92 and identified Ex.PW-38/B (letter signature of Sh. Sadhu Singh at point dated 12.05.1992);
X on it. Ex.PW-38/C (letter In the same file, he identified signature dated 13.05.1992); of Purushottam Lal, Store Keeper, on Ex.PW-38/D (letter letter dated 12.05.1992 at point X and dated 26.03.1992); signature of Sh. Sadhu Singh on letters dated 13.05.1992, 26.03.1992 and Ex.PW-38/E (letter 20.01.1992 at point X. dated 20.01.1992);
Page 38 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) He also identified a bill for the period Ex.PW38/F (bill for 18.03.1991 to 31.01.1992 prepared by the period 18.03. Haryana Agro Industries Corporation 1991 to 31.01.
Ltd., in the name of AAR KAY 1992);
Enterprises, Ambala City, in the Ex.PW38/G
handwriting of Sh. Nagpal, Accountant. (seizure memo
He also identified the signature of Sh. dated 12.08.97 (D-
Sadhu Singh at point X, which was put 73(C));
by him, so as to mark his approval/
acknowledgement.
He also proved seizure memo (D-
73(C)) dated 12.08.1997. He also
identified signature of Sh. Harijinder
Singh at point X on it.
PW-39/ During June 1994, he was posted as Ex.PW-39/A
Sh. Dy. S.P. in Anti Corruption Branch, New (colly. 3 pages)
Ravinder Delhi. After registration of FIR in the (D-87 i.e. seizure
Singh present case, he was assigned memo)
Jaggi investigation of this case by Sh. V.S.K. Ex.PW-39/B &
Kamudi (the then S.P.). Ex.PW-39/C(colly.
He formed a search team consisting of 6 pages) (D-88 i.e.
SI Ashok Kumar and one more official seizure memo &
and was witness to search observation
proceedings conducted at the memo)
premises of Subhash Handa.
He proved D-87 i.e. seizure memo prepared by him. He also identified his signature at point A, signature of SI Ashok Kumar at point B, signature of Insp. A.K. Mishra at point C, signature of Mr. Vinay Shankar at point D and signature of Mr. Sood at point E, on each page of this seizure memo.
He also proved D-88 i.e. seizure memo and observation memo prepared by him at A-379, Pocket-C, Vasant Kunj, New Delhi. He identified his signature at point A, signature of Mr. Kaushik at point B, signature of Insp. A.K. Mishra at point C and signature of Sh. Thapa at point D on each page of this seizure memo and observation memo. He also identified his signature on D-70 (Ex.PW34/A) and Page 39 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) AD-27 (Ex.PW29/A).
PW-40/ He was assigned further investigation Ex.PW-40/A (D-54 Sh. K. of the case on 20.01.1997 by the order i.e. a letter dated Babu of Sh. R.K. Prasad, the then SP, CBI, 21.03.1997);
ACB, Delhi. Ex.PW-40/B (D-58 He collected documents relating to this i.e. seizure memo case and also examined witnesses dated 21.04.1997); concerning these documents. On Ex.PW-40/C (D-59 completion of investigation, he i.e. seizure memo obtained sanction for prosecution in dated 28.04.1997); respect of eight serving officials of NFL and filed chargesheet before the court Ex.PW-40/D (D-72 against 13 accused persons. i.e. seizure memo dated 11.08.1997);
He proved D-54 i.e. a letter dated 21.03.1997 written by him to Chief Manager, SBI, Ambala City, Mandi Branch. He identified his signature on the same.
He also identified D-55 i.e. letter dated 21.03.1997 received by him from Chief Manager, SBI Ambala City Mandi Branch.
He proved D-58 i.e. seizure memo dated 21.04.1997, which was prepared by him while taking two documents from Sh. Gurmej Singh. Vide this memo D-56 and D-57 were taken into possession. He identified his signature at point X and signature of Mr. Gurmej Singh at point Y on it. He also proved D-59 i.e. seizure memo dated 28.04.1997, prepared by him. He also identified his signature on it at point X. He also identified his signature on D-64 i.e. seizure memo dated 16.05.1997 (Ex.PW-15/3) at point Y. This seizure memo was also prepared by him.
He proved D-72 i.e. seizure memo dated 11.08.1997, which was prepared by him. He identified his signature at point Y on it. He prepared the chargesheet. 12 PLEA OF ALL ACCUSED PERSON UNDER SECTION 313 CR.P.C. ● PLEA OF ACCUSED SH. DILBAGH SINGH KANWAR (A2) :-
Page 40 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) A2 took plea that he was falsely implicated in the present case. He further took plea that all his acts were bonafide and in discharge of his official duties with the sole objective to advance the interests of NFL. Issues of NFL marketing department had unique issues which were to be dealt with accordingly and there was no violation of any policy/guidelines to the detriment of interest of NFL on his part. He further took plea that during his tenure the profits of NFL (Marketing Department) soared to great extent due to various innovative and new measures/schemes under him and his acts in no manner can be construed to cause any monetary loss to NFL or favourable to any entity including accused Subhash Handa (A1). ● PLEA OF ACCUSED SH. SUMEDH PATHAK (A4) :-
A4 took plea that he was falsely implicated in the present case. He took plea that after formation of one committee for handing of half rake only of PPCL & DAP, no transportation of rake was got done, which reached at Ambala city rake point in exigency and no loss was caused to NFL. He further took plea that the charges for handling of rake was paid lesser than the earlier amount paid by NFL, as the handling charges for this exigency rake were paid @ Rs. 17/- instead of Rs. 20 PMT which was paid earlier by NFL. Moreover, as per sale terms of PPCL DAP, this rake was disposed off at ex-rake point and the transportation was done by dealers only and not by NFL because PPCL DAP was not the product manufactured by NFL.
● PLEA OF ACCUSED SH. RAM TIRATH DUVEDI (A5) :- A5 took plea that he was innocent and had been falsely implicated in this case. Nothing has come against him during evidence and he Page 41 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) has been made scapegoat by CBI.
● PLEA OF ACCUSED SH. SARDARI LAL KASHYAP (A6) :- A6 took plea that he is innocent and has been falsely implicated in the present case.
● PLEA OF ACCUSED SH. RAJBIR KAJAL (A7) :-
A7 took plea that he is innocent and has been falsely implicated in this case and he has been made a scape goat by senior officials of NFL in order to save themselves. He further took plea that he had issued the material on credit at the instance of his senior officers and the payment against the delivery orders were received by NFL prior to the registration of the present case. ● PLEA OF ACCUSED SH. GURMEJ SINGH (A8) :-
A8 took plea that he is innocent and has been falsely implicated in this case and he has been made a scape goat by senior officials of NFL in order to save themselves. He further took plea that he had issued the material on credit at the instance of his senior officers. He further took plea that he was not the member of the committee which collected quotations from M/s NITCO Roadways, M/s Ahuja Goods Carrier & M/s R.K. Roadlines, Ambala for appointing H & T Contactor at Ambala rake point. He was made a committee member for preparing the comparative statement of quotations as per directions of senior officers regarding transportation work at Ex-rake point, Ambala city and accordingly, he inspected the comparative statement of quotations and signed the note dated 25.01.91 which was correct and no transportation of rake was carried out and no financial loss was caused to NFL.
● PLEA OF ACCUSED SH. GIREESH KUMAR SHARMA (A9) :-Page 42 of 80 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) A9 took plea that he is innocent and has been falsely implicated in this case and he has been made a scape goat by senior officials of NFL in order to save themselves. He further took plea that he had issued the material on credit at the instance of his senior officers. ● PLEA OF ACCUSED SH. ASHOK KUMAR AHLUWALIA (A10) :- A10 took plea that he is innocent and has been falsely implicated in the present case.
● PLEA OF ACCUSED SH. ASHOK KUMAR (A11) :-
A11 took plea that he is innocent and has been falsely implicated in this case and he has been made a scape goat by senior officials of NFL in order to save themselves. He further took plea that he had issued the material on credit at the instance of his senior officers. ● PLEA OF ACCUSED SH. BRIJ MOHAN JAGOTA (A12) :- A12 also took plea on the same lines of A11. REFERENCE TO CASE LAWS: -
13 Ld. counsel for accused Sh. Dilbagh Singh Kanwar (A-2) relied upon following case laws:-
13.1 S.P. Bhatnagar v. State of Maharashtra (1979) 1 SCC. 13.2 Karambir Singh & Anr. v. State of Haryana (CRA-S No.2460-SB of 2008 dated 18.12.2013) decided by Punjab and Haryana High Court.
13.3 N.K. Ganguly v. CBI, (2016) 2 SCC 143. 13.4 Amal Kumar Jha v. State of Chhatisgarh (2016) 4 SCALE 378. 13.5 Venketesha v. State of Karnataka (2013) 12 SCC 99. 13.6 CBI v. Ashok Kumar Aggarwal & Anr. (2013) 15 SCC 222. 14 Ld. counsel for accused A2 relied upon case of Venketesha (supra) to Page 43 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) highlight following observation:
"Section 133 of the Evidence Act, makes an accomplice a competent witness against the accused person and declares that a conviction shall not be illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Even so, the established rule of practice evolved on the basis of human experience since times immemorial, is that it is unsafe to record a conviction on the testimony of an approver unless the same is corroborated in material particulars by some untainted and credible evidence. So consistent has been the commitment of the courts to that rule of practice, that the same is now treated as a rule of law. Courts, therefore, not only approach the evidence of an approver with caution, but insist on corroboration of his version before resting a verdict of guilt against the accused, on the basis of such a deposition. The juristic basis for that requirement is the fact that the approver is by his own admission a criminal, which by itself makes him unworthy of an implicit reliance by the Court, unless it is satisfied about the truthfulness of his story by evidence that is independent and supportive of the version given by him. That the approver's testimony needs corroboration cannot, therefore, be doubted as a proposition of law. The question is whether any such corroboration is forthcoming from the evidence adduced by the prosecution in the present case".
15 Ld. counsel for accused A2 relied upon case of Ashok Kumar Aggarwal (supra) to point out:
"39. An accomplice is a competent witness and [that] conviction can lawfully rest upon his uncorroborated testimony, yet the court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless the evidence is corroborated in material particulars, which means that there has to be some independent witness tending to incriminate the particular accused in the commission of the crime". ..............
21. Section 114 Illustration (b) and Section 133 of the Indian Page 44 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) Evidence Act, 1872 provide for the same that an accomplice is a competent witness and that his testimony can be relied upon but depending upon the quality of the evidence. While Section 133 reads that "Accomplice is a competent witness and a conviction can be maintained on his evidence", illustration (b) of Section 114 provides for presumption that "an accomplice is unworthy of credit, unless is corroborated in material particulars". Thus, in practice conviction of a person on such evidence should not take place except under very rare and exceptional circumstances. Usually substantial corroboration is required. This provision incorporates a rule of caution to which the court must have regard. (Vide:
Sheikh Zakir v. State of Bihar, AIR 1983 SC 911; Niranjan Singh v. State of Punjab, AIR 1996 SC 3254; and State of Tamil Nadu v. Suresh & Anr.
In Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599, this court considered the judgment in Bhuboni Sahu v. The King, AIR 1949 PC 257 wherein it has been observed as under: -
"The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence, and the story may be true in all its details as to eight of them, but untrue as to the other two, whose names have been introduced because they are enemies of the approver. This tendency to include the innocent with the guilty is peculiarly prevalent in India, as judges have noted on innumerable occasions, and it is very difficult for the court to guard against the danger."
23. This Court placing reliance on the above, held as under:
-
"7. The combined effect of Ss. 133 and 114, illustration (b) Page 45 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) may be stated as follows: According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the Courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars."
16 Ld. counsel for A2 also relied upon case of N.K. Ganguly (supra), wherein Supreme Court held as under:-
"35. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under Section 197 of CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 of CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.
................
37. For the aforesaid reasons, we set aside the impugned judgment and order of the High Court dated 27.05.2013 passed in Application Nos. 480 of 2013, 41206, 40718, 41006 and 41187 of 2012 and order dated 7.10.2014 passed in Application No. 277KH of 2014 in Special Case No. 18 of 2012 and quash the proceedings taking cognizance and issuing summons to the appellants in Page 46 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) Special Case No. 18 of 2012 by the Special Judge, Anti Corruption (CBI), Ghaziabad, U.P. in absence of previous sanction obtained from the Central Government to prosecute the appellants as required under Section 197 of CrPC. The appeals are allowed. All the applications are disposed of."
17 Ld. counsel for A4, A5, A7, A8, A9, A11 and A12 relied upon a case law titled as S.K. Kale v. State of Maharashtra, Crl. Appeal No. 301 of 1971 (SC) to submit that to hold accused guilty for offence u/s 5 (2) POC Act, it is for the prosecution to prove that accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person.
18 Ld. defence counsel further relied upon case law titled Jibrial Diwan v. State of Maharashtra decided by Supreme Court on 24.07.1997 to stress upon following observation:
"the words 'dishonestly' has been defined to mean that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'. The word 'fraudulently' has been defined to mean that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise......
The word 'intent to defraud' is not synonymous with words `intent to deceive'. It requires some action resulting in a disadvantage which but for the deception the person defrauded would have avoided. here by the delivery of forged letters, there is neither any wrongful gain to anyone nor any wrongful loss to another. The act of the appellant could not thus be termed to have been done dishonestly. Likewise the appellant cannot be said to have any intention to defraud because his action resulted in no disadvantage to any one which but for the deception the person defrauded would have acted otherwise. The basic ingredients of the act done `dishonestly' or `fraudulently' being missing, the charge under Section 471 read with 465 IPC was totally Page 47 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) misplaced and the High Court fell into an error in convicting the appellant on those charges."
19 Ld. defence counsel further relied upon case law titled Sheila Sebastion v. Jawaharaj & Anr. Crl. Appeals No.359-360/2010 (SC) to stress upon following observation: -
"22.In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences, this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant. ...........
23.The Court in Md. Ibrahim(supra) observed that:There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised Page 48 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
20 Ld. defence counsel further relied upon case law titled Smt. M.V. Subba Laxmi v. State of Hyderabad, 1996 (4) Crimes 467, to stress upon following observation: -
"...........it is thus obvious that the officers had signed those documents carelessly and that was not with an intention to cause benefit to oneself or that is cause loss to the bank. The signing was done merely carelessly. The proper remedy for the bank to file civil suit or departmental inquiry against those officers. There is absolutely nothing to do so that there was any mens rea in signing the documents by accused no.2. The learned Public Prosecutor was unable to point out any material from which a fair inference of guilt could be drawn against accused no.2.
10. In the circumstances there is utter lack of evidence to record conviction either accused no.2 or accused no.3. Both the Criminal appeals must therefore succeed."
21 Ld. counsel for A10 relied upon a case law titled as State of M.P. v. Sheetla Sahai & Ors. VI (2009) SLT 535 to stress upon following observations:-
"50. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused.
51. A criminal conspiracy must be put to action inasmuch Page 49 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) as so long a crime is generated in the mind of an accused, it does not become punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy. Its ingredients are
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.
What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
52. While saying so, we are not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence". 22 Ld. defence counsel for A10 further relied upon State of Punjab & Ors. v. Ram Singh Ex. Constable, AIR 1992 Supreme Court 2188, to stress upon following observation:-
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus :-
"A transgression of some established an definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence but not negligence or care-lessness." Misconduct in office has been defined as :
"Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an Page 50 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) affirmative duty to act."
P. Ramanatha Aiyar's the Law Lexicon, Reprint Edition 1987 at p.821 `misconduct' defines thus:-
"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct."
23 Ld. defence counsel for A6 further relied upon A.K. Ganju & Ors. v. CBI, 2014 AD (Delhi) 349, to stress upon following observation:-
"114. As regards the charge under Section 13(1)(d) of the PC Act, the violator should have obtained a valuable thing or pecuniary advantage for himself or for any other person. In the present case, in chargesheet, there are no allegations of any kind, whatsoever, of any demand, acceptance or giving of any bribe by anybody to anyone. For such an offence, the prosecution has to establish that the accused has obtained the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of statutory presumption available to him. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1) (d) of the PC Act cannot be held to be established."
24 Ld. defence counsel for A10 further relied upon C.K. Jaffer Sharief v. State, AIR 2013 Supreme Court 48, to stress upon following observation:-
"...That dishonest intention is the gist of the offence under section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant."
25 Ld. defence counsel for A10 further relied upon CBI v. Ashok Kumar Aggarwal, JT 2013 (15) SC 251, to stress upon following observation:
Page 51 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) "8. In view of the above, the legal propositions can be summarized as under:
(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.
(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law."
26 Ld. Sr. PP for CBI relied upon case law titled as Smt. Neera Yadav v. CBI, decided by Allahabad High Court on 28.11.2005, wherein Allahabad High Court held as under:-
"58. From foregoing discussions and the law laid down by the Apex Court, as noted above, the intention of the legislature clearly decipherable is that provisions of sanction given under Section 19 of 1988 Act covering the offences covered under the 1988 Act shall override the similar provision of sanction contained in Section 197 of Cr.P.C. According to generality of the provision as contained Page 52 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) in Section 5(3) of the Prevention of Corruption Act, the provisions of Section 197 of Cr.P.C. in so far as offence under Prevention of Corruption Act, 1988 are concerned will be inconsistent to Section 19 of the Prevention of Corruption Act, 1988 and provisions of Section 197 of Cr.P.C. in so far as sanction of the offences under 1988 Act is concerned shall give way to the provisions of the special Act. Further, as noted above, there is marked difference in the scheme of sanction as contained under Section 19 of 1988 Act compared to scheme of sanction under Section 197 of Cr.P.C. Under Section 19 the legislature has empowered the authority who is competent to remove the public servant the power of sanction. In case the submission is accepted that even after sanction under Section 19 of 1988 Act, additional/double sanction under Section 197 of Cr.P.C. has also to be obtained, the very purpose of Section 19 and the legislative intent shall be defeated. When the sanctioning authority has purposely and consciously changed the scheme of sanction under Section 19, sanction under Section 197 of Cr.P.C. will defeat the object and purpose of Section 19 and such an interpretation will destroy the very purpose and object of the special Act. Applying the rule of interpretation as noted above, the provisions of special Act has to be given effect and additional/double sanction under Section 197 of Cr.P.C. is neither necessary nor contemplated according to the scope and object of the special Act. The marked differences noted between the provisions of Section 19 of 1998 Act and Section 197 of Cr.P.C. also indicate that the scheme and ' purpose of Section 197 of Cr.P.C. has been consciously changed by legislature and requirement of additional sanction or double sanction under Section 197 of Cr.P.C. shall make the provisions of Section 19 redundant. Thus, it is held that for offences covered under Prevention of Corruption Act, 1988 sanction under Section 19 is sufficient and no further sanction is required under Section 197 of Cr.P.C. In a given case when apart from offence covered under 1988 Act there are other offences distinct and separate from offences under 1988 Act sanction may be required under Section 197 of Cr.P.C. but in the present case the offence under which accused applicants have been charged being Page 53 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) covered under the special Act, no further sanction under Section 197 of Cr.P.C. is required.
...................
63. Thus, the conspiracy to commit any offence enumerated in the Prevention of Corruption Act, 1988 has also to be tried by special Judge for which sanction under Section 19 is sufficient. In the present case sanction has been granted by the Central Government under the Prevention of Corruption Act. Sanction order clearly reveals that sanction has been granted for prosecution under Section 13(1)(d) read with 13(2) of Prevention of Corruption Act read with Section 120B of I.P.C. The sanction having been granted for criminal conspiracy which is also an offence under Prevention of Corruption Act, mere addition of charge under 120-B of I.P.C. does not require any sanction under Section 197 of Cr.P.C.
64. There is one more reason for holding that sanction under Section 197 Cr.P.C, if necessary, for offence under Section 120B of I.P.C. is not required in the present case, i.e., the act of criminal conspiracy is no part of the duty of a public servant while discharging official duty. In Harihar Prasad v. State of Bihar it was held that for offence under Section 120B of Cr.P.C. sanction under Section 197 Cr.P.C. is not required. In State of Kerala v. V. Padmanabhan Nair (supra) to the same effect observations were made in paragraph 7 which are extracted below:-
That apart, the contention of the respondent that for the offence under Section 406 and 409 read with Section 120B of I.P.C. sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the correct legal position in Shreekantiah Ramayya Munnipalli v. State of Bombay and also Amrik Singh v. State of Pepsu that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad as follows: (SCCp. 115, para 66) As far as the offence of criminal Page 54 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) conspiracy punishable under Section 120B, read with Section 409, Indian Penal Code is concerned and also Section 5 (2) of the Prevention of Corruption Act is concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS AND FINDINGS :-
27 In this case, charges were framed against accused Subhash Handa (A1) in his individual capacity for offence punishable u/s 420 IPC. However, with the death of A1, there remains no occasion to return any finding regarding those charges framed exclusively against A1, because case stood abated against him. As far as other accused persons are concerned, I shall deal with the charges related to substantive offences against them one by one. I shall look into the aspect of conspiracy, after the court reaches a conclusion regarding commission of substantive offences by the respective accused persons. I have already mentioned the case laws referred by the parties, which shall be kept in mind while analysing the facts, evidence and arguments.
HANDLING AND TRANSPORTATION CONTRACT:
28 It has been alleged by prosecution that A2. A4, A5, A7 & A8 acted out of a criminal conspiracy to award the contract of handling and transportation to M/s R.K. Roadlines, showing collection of quotations from M/s NITCO Roadways and M/s Ahuja Goods Carrier, apart from M/s R.K. Roadlines. Though, no such quotations were furnished by M/s Page 55 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) NITCO Roadways and M/s Ahuja Goods Carrier and their quotations were allegedly fabricated and forged, which were used to show that M/s R.K. Roadlines had quoted lesser rates and thus, these accused persons alongwith A1 committed offence punishable u/s 120B IPC r/w 420/468/471 IPC and 13 (1) (d) P,C. Act 1988 as well as substantive offenes punishable u/s 468 & 471 IPC and u/s 13 (2) read with Section 13 (1) (d) P.C. Act, 1988. It is, though, also alleged that these accused persons had shown undue favour in favour of M/s R.K. Roadlines in awarding the contract of H & T at a higher rate by abusing their official position.
29 To prove aforesaid charges, Sr. PP for CBI relied upon evidence of PW16/Sh. Babu Singh. It was further argued that no counter evidence was brought by defence to the evidence of PW16. 30 In rebuttal, defence counsels relied upon evidence of PW4, who deposed that there was no policy for awarding such contract. It was further argued that the quotations of M/s. Ahuja Goods Carrier was not proved by CBI and that PW16 did not prove documents D-6 (page 2) & D-7 (page7). Ld. defence counsels referred to the testimony of PW16 wherein he deposed that there had been managers in M/s. Ahuja Goods Carrier, who were changed. It was further argued that there is no evidence to show as to how letter head of these two agencies came in possession of others. It was also argued by defence that transportation charges were also not fixed at higher rates, rather lower charges were fixed. There is no evidence to show that there was any bar to give such contract to sister concern of M/s. Aar Kay Enterprises. It was further argued that there was no mens rea to commit any crime by committee members. They referred to testimony of PW16 wherein Page 56 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) he admitted that quotation was given on the letter head of M/s. NITCO. It was further argued that IO was duty bound to examine other officials of M/s. NITCO i.e. Mr. Ramesh, Mr. Ashok and non-examination of these officials by IO was intentional and PW16 was a tutored witness. 31 Accused persons led defence evidence, thereby examining certain witnesses in support of their defence. Ld. defence counsels relied upon documents i.e. Ex.DW1/4, Ex.DW1/5, Ex.DW1/8, Ex.DW1/9, Ex.DW1/10 to show that Rs.20 PMT was charges of handling. They further referred to Ex.DW1/17, Ex.DW1/18, Ex.DW1/21, Ex.DW1/22 and Ex.DW1/24, showing transportation charges to be separate and that lesser charges were given to M/s R.K. Roadlines as compared to others. They argued that no pecuniary advantage was given additionally to M/s R.K. Roadlines.
32 In order to appreciate the rival contentions, It is appropriate to refer to ingredients of alleged offences. Section 468 IPC makes commission of forgery with intention to use such forged document for the purpose of cheating, an offence. Section 471 IPC provides that whoever fraudulently or dishonestly uses a document as genuine, knowing fully well or having reason to believe such document to be forged, then such person commits offence under this provision. Forgery is defined in Section 463 IPC, stating that whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 464 IPC defines making of a false document. Thus, forgery of a document is first ingredient which must be satisfied Page 57 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) to invoke Section 468 & 471 IPC.
33 A full bench of Supreme Court in Ram Narayan Popli v. CBI, (2003) 3 SCC 641, had occasion to deal with the ingredients of forgery and while dealing with this question, the court observed as follows :-
"The first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any communities."
The court further observed that "the definition of the offence of forgery declares the offence to be completed when a false document is made with specified intention. The questions are (i) is the document false, (ii) is it made by the accused and (iii) is it made with an intent to defraud. If at all the questions are answered in the affirmative, the accused is guilty."
The aforesaid observations of the Supreme Court make it amply clear that in order to constitute forgery, the first ingredient, which requires to be established, is making of a false document. While dealing with question of making of false document, Supreme Court in Mohd. Ibrahim & Ors. v. State of Bihar (2009) 8 SCC 751, held as under :-
"In short, a person is said to have made a false document, if (i) he made or executed a document claiming to be someone else or authorized by someone else; or (ii) he altered or tempered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses."
34 In the present case, PW16/Sh. Babu Singh was examined by CBI to prove that quotations shown to be received from NITCO Roadways Ltd. and from M/s Ahuja Goods Carrier, were forged documents. As per Page 58 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) testimony of PW16, in the year 1991, he was posted as In-charge of Ambala Branch of NITCO Roadways Pvt. Ltd. At that time there were 3 more officials working in that branch, namely Sh. Ramesh Raj Sharma (Accountant), Sh. Ashok Kumar (General Duty Clerk) and Sh. Surjeet Kumar (GDC). PW16 had worked with all these persons. His company did not use to give quotation to anyone, rather, parties used to visit their office in order to obtain their quotations. His company did not take the work of local transportation. The signatory of the quotation used to be branch incharge or second in command. During aforesaid period, the quotations were prepared by them on the letter head of the company, but there was no typewriter in their branch. They had not given any quotation to NFL, nor any quotation was obtained by officials of NFL. He could identify his handwriting and signatures as well as handwriting and signatures of other three officials (as named herein above). After perusing the quotation Ex. PW16/A, PW16 deposed that signature appearing at point X on this letter, did not pertain to him or other three officials. He further deposed that there was no seal and stamp of his branch, though, they used to affix such seal and stamp. He further deposed that this letter was not sent from his branch. Ex. PW16/A was the quotation in respect of transportation arrangement at Ambala City.
35 PW16 again perused another letter Ex. PW16/B and once again he took stand that neither this letter bore handwriting and signature of any of the officials working in his branch, nor this letter was sent from his branch. Ex. PW16/B was quotation offering labour charges for the purpose of handling at Ambala City Railway Station. PW16 further deposed that M/s Ahuja Goods Carrier was owned by one Lala Buta Page 59 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) Ram Ahuja and this company was given agency by NITCO Roadways Ltd. till 1990. PW16 had dealt with the written communication made by Lal Buta Ram with his company and therefore, he had seen his signature. According to PW16, Lala Buta Ram used to sign in Urdu. But the quotations given on behalf of M/s Ahuja Goods Carrier bore signature in English. In his cross-examination by defence, PW16 deposed that he had not seen any other regular employee of Lala Buta Ram. He denied the suggestions that Ex. PW16/A & Ex. PW16/B were issued from his branch.
36 The quotations on behalf of M/s Ahuja Goods Carrier remained unexhibited as prosecution did not produce any witness from this particular firm. Evidence of PW16 cannot be sufficient to assume that the quotations from M/s Ahuja Goods Carrier were forged documents. As far as quotations from M/s NITCO Roadways Ltd. i.e. Ex. PW16/A and Ex. PW16/B are concerned, PW16 himself deposed that these letters were prepared on letter head of his company. Though, he denied these letters being sent from his branch, but prosecution did not bring any evidence to show and explain that how could letter head of this company be used by any of the accused persons. CBI did not investigate into this question at all or if it was so investigated then, outcome of such investigation has not been put forward before the court. CBI did not take any step for comparison of handwriting and signatures appearing on these two documents with the admitted/specimen handwriting and signature of any of the accused persons, so as to show that any of the accused persons were involved in making these two documents. Thus, there is no evidence to say that these two letters were actually prepared by any of the charged Page 60 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) accused persons. I also find merit in the contention of defence that other officials of NITCO should have been examined by IO, so as to take their stand in respect of aforesaid letters. IO should have investigated as to how the letter heads of NITCO could be used by any other person, if actually they were so used by any other person than officials of this company. Thus, the evidence produced by CBI in this respect is not sufficient to assume that any of the quotations on behalf of M/s NITCO Roadways Ltd. or M/s Ahuja Goods Carrier were actually forged documents.
37 Now the question is that whether award of this contract was forbidden by policy of NFL, on the grounds of M/s R.K. Roadlines being sister concern of a dealer. In this aspect, it is sufficient to say that as per IO/PW40/Sh. K. Babu itself, there was no bar for M/s R.K. Roadlines to get contract of private godowns. PW4/Sh. Vidya Nand was one of the prime witnesses of the prosecution in this case, who had worked in Finance and Accounts department of NFL and who retired as Chief Manager from this department. Even he deposed that no particular policy was spelt out in his company in respect of awarding work to two different firms acting as H & T Contractor and dealer and owned by a same person. Therefore, there is no merit in such allegations as made in the charge sheet.
38 Ld. Sr. PP did not dispute the genuineness of documents Ex. DW1/4 to DW1/24 and on perusal of these documents as well as on perusal of the office notes Ex. PW32/L, Ex.PW32/M, Ex. PW32/D1 and Ex. PW32/H, it does appear that the rates being approved for M/s R.K. Roadlines were actually on lesser side, rather than on higher side (as alleged in the charges). The document referred by defence counsels Page 61 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) do show that handling charges @ of Rs. 20 PMT was given to other agencies by NFL and such charges to M/s R.K. Roadlines were given at a lesser rate of Rs. 17 PMT. Therefore, it cannot be said that any monetary advantage was given to M/s R.K. Roadlines, in comparison to rates given to other agencies for similar work. Hence, the element of causing loss or injury to NFL is also absent, in this case. 39 The answers to the questions framed by Supreme Court in Ram Narayan's case (supra) i.e. (i) is the document false, (ii) is it made by the accused and (iii) is it made with an intent to defraud, thus, do not go in favour of the prosecution. Hence, the aforesaid charges related to handling and transportation contract are not established on the record. APPOINTMENT OF DEALER AND CREDIT POLICY:
40 The next charge against A2, A5, A6, A7, A8, A9, A10, A11, A12 & A13 are that they all acted in pursuance of criminal conspiracy to show undue favour fo A1 by appointing his two firms namely M/s AAR KAY Enterprises and M/s Kuber Traders as adhoc dealers, though these firms did not have financial soundness and no supportive documents were filed with the respective applications. Prosecution has alleged that A5, A6 & A7 dishonestly prepared undated recommendation and thereafter, A5, A6, A7, A8, A9, A10, A11, A12 issued delivery orders in favour of aforesaid firms of A1 without receipt of any payment, so as to extend pecuniary advantage to A1 in the sum of Rs. 2.52 crores approx and causing loss to the NFL in the similar sum. A13 had issued written instructions to A8 to deliver the material to A1 as per his requirement. However, A13 has already expired and case stood abated against him. 41 Ld. Sr. PP for CBI argued that adhoc dealership could not be approved by A2 without concurrence of Finance Department, in view of Page 62 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) such requirement out of police of NFL. For this purpose, he relied upon office order dated 22.06.90/Ex. PW10/1 and schedule of sub- delegation of powers to General Manager (Marketing)/Ex. PW19/1. He further argued that as per policy of NFL/Ex. PW19/2, the guidelines for appointment of dealers were not followed by A2. He further argued that adhoc dealership could not be given for more than 6 months, but A2 had approved for adhoc dealership of the firms owned by A1 for a year in advance. Ld. Sr. PP referred to testimony of PW4, PW9, PW10, PW15 and PW27 to support his arguments. He further referred to testimony of PW15 to submit that she was pressurized by A2 to prepare notes for approval and to immediately issue appointment letter in favour of aforesaid two firms of A1. In the written arguments, it was further submitted that the adhoc dealership was granted in a single day. Ld. PP submitted that such haste on the part of A2 reflected his malafide intention and for such reasons A2 did not seek concurrence of finance department.
42 The next limb of arguments made by ld. Sr. PP for CBI was that materials worth Rs. 2.5 crores were given on credit through various delivery orders, without ensuring payments against previous deliveries. He submitted that materials were given on credit against policies of NFL.
43 Ld. counsel for A2 argued that this was the case of civil liability only, because A1 failed to pay dues towards NFL and because of his failure to pay, this case was registered in 1994, thereby giving a criminal colour to the case. He further argued that NFL had to operate in a competitive market and at the relevant time, there was surplus production but lesser demand. The urea products were to be sold off Page 63 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) so as to clear the rakes and hence, it was part of the settled practice to deliver materials on credit basis as well. He further submitted that there was no bar to entertain an application for dealership at Central Marketing Office (CMO) and A1 was not the solitary case of being appointed as adhoc dealer. It was so done to boost the sales in view of the insufficient dealer network. Ld. counsel further sought to discredit the testimony of PW15, submitting that she was an approver and she wanted to get rid of case. Moreover, her testimony is not corroborated by any evidence, rather, testimony of PW8 would show that A2 had been working to boost the sales and with objective to clear the stocks of NFL. He further submitted that there is no evidence on the record to show that what was the procedure for appointment of dealer, which could be breached by A2. There is no evidence to show that A2 had intention to favour A1 or to cause gain to him at the cost of interest of NFL. There was no intention of cheating and there is no allegation that A2 obtained any favour or advantage for himself. He submitted that IO did not conduct fair investigation to collect any document related to policy of NFL. There is no evidence about settled practice, rather, the testimony of various witnesses would show that there was no violation of any settled practice in respect of appointment of dealer or in extending facility of credit to the firms of A1. He submitted that there was no bar to grant dealership on the same day. There is nothing on record to suggest that adhoc dealership was to be given only for 6 months. He referred to Ex. DW1/25F, Ex. DW1/25G and Ex. DW1/25N and submitted that these copies of ledger of outstanding amount would show that there had been other firms also who were given goods on credit for large sum and there had been outstanding amounts against Page 64 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) them as well. He further submitted that financial concurrence was required only when there was financial implication and not otherwise. 44 Ld. counsel for other accused persons argued that as per Ex. PW15/5 i.e. appointment letter of dealership, the parties had to complete formalities within 30 days i.e. to submit all documents and this was the practice prevalent at the relevant time. He further submitted that a development officer was required to send the recommendation on the basis of the feed backs from villagers and he was not required to obtain documents of financial status. They further submitted that CMO also used to approve the dealership in principle, but goods were delivered only after completion of formalities. He further submitted that the recommendation was given in this case prior in time of approval, as such notes were moved on 22.11.90 and 12.03.91, though the approval was given much later on. It was further argued that there is no presumption that A5 had prepared undated note subsequently to approval of the dealership. It was further argued that the financial status of the party was to be checked by finance department and even the certificates of the banks were to be verified by accounts branch. Ld. counsels further referred to testimony of PW12, wherein he stated that the letter Ex. PW12/D1 was in his handwriting, but he had not put the date. Though, a date was mentioned in that letter, which showed that someone had fabricated the document, while putting such date. 45 On behalf of A10, it was argued that he had issued three delivery orders and thereafter, he was transferred to other place. As per normal practice, the delivery orders used to lapse on completion of 30 days and thereafter, only on the basis of revalidation of the same, goods could be delivered. Ld. Counsel for A10 further submitted that A10 had Page 65 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) already cancelled the delivery orders before relieving from his duties at Kaithal and the goods were delivered on the basis of revalidation by subsequent officer namely Sh. Sohan Lal. He further submitted that there was practice of giving urea on credit basis and for such purposes oral instructions were being given by senior officers. It was further argued by the defence counsels that the aforesaid firms were later on appointed as special dealers and bulk buyers under assured off take scheme and there were instructions to give urea on credit to such bulk buyers.
46 The allegations made by prosecution in the aforesaid charges under consideration are two folds. The first limb of allegations is that adhoc dealership to two firms of A1 were given in violation to the norms of NFL. Second limb of allegations is that materials/Urea/DAP were supplied to aforesaid firms on credit, though there was no such policy to supply the materials on credit.
47 As far as criminal misconduct as defined u/s 13 (1) (d) (i) & 13 (1) (d)
(ii) P.C. Act 1988 is concerned, the common feature of both these provisions is obtaining any valuable thing or pecuniary advantage either for himself or for any other person. If I assess the first limb of aforesaid allegations, which relates to appointment of aforesaid two firms of A1 as dealer of NFL, then I find that element of obtaining valuable thing and pecuniary advantage is not satisfied. I say so because mere appointment of a firm as dealer does not entail any pecuniary advantage to such firm. There can be a situation that for the purpose of giving such appointment, the concerned public servant obtains pecuniary advantage for himself from the prospective dealer. However, that is not the allegation made in this case. It is not the case Page 66 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) of CBI that any of the accused persons, except A1, who were working in NFL at the relevant time, obtained any pecuniary advantage for themselves from A1 as reward for awarding contract of dealership to two aforesaid firms of A1. Therefore, even if for the sake of argument, it is assumed that there had been some deviation from the settled norms of NFL, while awarding dealership to aforesaid two firms of NFL, such deviation cannot make out a case of criminal misconduct u/s 13 (1) (d)
(i) & 13 (1) (d) (ii) P.C. Act 1988 (as alleged by prosecution). In absence of any damage/wrongful gain or loss, a case of cheating also cannot be made out, on the basis of only first limb of allegations. 48 It is only the second limb of the allegations regarding delivering the materials to two aforesaid firms on credit, which became cause of anxiety for NFL and subsequently for CBI. To be more specific, this anxiety came into existence because, A1 defaulted in making payment of price of the materials lifted through his aforesaid firms. Had A1 made all the payments, then probably, this case would not have come into existence. Therefore, it has to be seen by this court that whether the goods were delivered on credit against the norms of NFL. 49 For this aspect of the case, CBI examined different witnesses before the court. The task of the CBI was to establish on the record that as per policy of NFL, the materials could not have been delivered on credit basis to the aforesaid firms of the A1. In the testimony of various witnesses belonging to NFL as well as last IO Sh. K. Babu, the undisputed fact has emerged on the record to the effect that there was no marketing manual in NFL before 1998. The delivery orders in favour of aforesaid firms of A1 had been issued in the month of July 1991. All the delivery orders proved on the record would show that they were Page 67 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) issued in the month of July 1991 by different accused persons (as narrated in the charges) from different places. If I look into the testimony of different officials from NFL, I do not find any such stand taken by them that the goods could not have been delivered on the credit basis at all.
50 PW2, who worked in Finance and Accounts department of NFL in the Zonal Office of NFL at the relevant time and who had been dealing with the private dealers, deposed during his cross-examination that the material was being delivered to a party on credit from NFL as per policy from time to time. He was not aware about the period of credit as a matter of policy in NFL during 1991, but he did support the contentions of defence that materials were delivered on credit basis. 51 PW4/Sh. Vidya Nand also worked in Finance and Accounts Department in Zonal Office at the relevant time. According to him as he could recall, "normally there was procedure of advance payment at the time of issue of delivery order or credit used to be given maximum for 7 to 10 days and thereafter, bank rate + 1 % used to be charged on the late payment. In the case of credit sale, there was order from CMO New Delhi to Zonal Office, Chandigarh to sell the material on credit basis, but with a condition that certain discounts and rebate were not to be given."
52 M/s AAR KAY Enterprises was also awarded dealership at Ambala under Assured Off Take Scheme, vide letter Ex. PW4/1. The relevant objection from PW4 against such appointment appears to be absence of approval from CMO and absence of concurrence by finance department. But at the same time, this witness deposed that as per Ex. PW4/1, performance of the dealer was to be assessed for the period Page 68 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) from October 1990 upto 01.04.91 and on the basis of its performance, the dealership was to be regularsied as special dealer. In this respect, it is relevant to mention here that prosecution has not come up with a case alleging that performance of this dealer had been too poor upto 01.04.1991, so as to make the decision of extending credit facility as suspicious decision. The same witness further deposed that according to his knowledge, there was no fixed policy of the company regarding receipt of payment because policy used to fluctuate as per market condition. He further deposed that "Urea/DAP was delivered on credit in 1991, due to peculiar market conditions prevailing at that time (acceptability of Urea/DAP products of NFL at that time was on lower side due to which there were lesser buyers for our Urea). No buyer would have opted to purchase Urea/DAP of NFL on cash and delivery basis and hence, delivery of Urea/DAP on credit basis cannot be said to be impermissible action during that time. However, if payments for materials delivered during July 1991 were not received by NFL, then supply of fresh material to same dealer on credit in the month of October 1991 would be termed as impermissible action." It is worth to mention here that this was a kind of opinion being given by PW4 regarding permissibility of alleged actions of granting credit facility. However, no concrete policy decision in this respect was proved by prosecution. In fact, the same witness named some other agents/bulk buyers to whom Urea or DAP was delivered on credit during same period. He also deposed that there were certain outstandings also against some of such companies besides private dealers. 53 He stated that M/s AAR KAY Enterprises could be termed as bulk buyer in the present case. He further admitted that during departmental Page 69 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) enquiry the prosecution witnesses had admitted that they had given oral instructions to Zonal Office to deliver materials to M/s AAR KAY Enterprises on credit. Such witnesses included Sh. Anil Kumar Sharma (who was examined as PW8 in the present case before the court). 54 He further admitted that prior to Rabi season in 1991, there was no order from the department against delivery of material on credit and even after such prohibition issued during rabi 1991-92, there were deviations in accordance with market condition, to deliver the materials on credit in the year 1992-93. It was further admitted by this witness that it was duty of finance department to verify the financial status of a private dealer and finance department had to obtain worthiness certificate of dealer from his bank.
55 PW8/Sh. Anil Kumar Sharma was another witness from NFL, who worked as Dy./Additional Marketing Manager at CMO, New Delhi during the relevant period. As per his testimony, normally adhoc dealership was approved on note itself and documents were taken later on. He admitted during his cross-examination by defence that bulk dealers were given credit facilities for more than 60 days against normal credit period of 30 days. He further deposed that some times credit facility was extended orally and subsequently the approval was taken from the competent authority. Appointment of M/s AAR KAY Enterprises as bulk dealer was also proved by this witness and he deposed that it was common and regular practice in NFL to give credit to dealer and bulk dealers. He further deposed that there were no policy, rules, regulations or guidelines regarding appointment of adhoc dealers. He further deposed that company was granting adhoc dealerships to many persons/entities immediately to rule out the Page 70 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) corruption in grant of adhoc dealership. It was understood in the NFL that the adhoc dealership should be granted first and then the paper work should be completed. He admitted the suggestion that no favour of any kind was shown to A1 by A2 for approval of dealership to his firms. He further deposed that all officers against whom departmental enquiry was initiated on same issue, were exonerated. In respect of validity of delivery order, he admitted the suggestion that the validity period used to be for 30 days and such delivery order in absence of any extension, used to lapse after 30 days. 56 PW9/Sh. P.K. Dey also worked in Marketing Department of NFL at Zonal Office as well as Regional Office during relevant period. According to his testimony, proposal for appointment of adhoc dealer was sent by local district officers giving all details like financial status of the party, etc. and then the proposal was forwarded to Regional Office, who would pass it to Zonal Office and finally it was sent to CMO for appointment of adhoc dealer. According to him, it was responsibility of Area Manager to verify the documents of the dealers and all dealers were required to make advance payments before issue of delivery orders. At one point of time, he deposed that he was not informed about material given to M/s AAR KAY Enterprises on credit and he came to know later on that direct instructions for this purpose were given by General Manager (Marketing) to Area Manager, Kurukshetra. He further deposed that he never issued any instructions to A13 to issue the material on credit to companies of A1. He further deposed that on 24.07.91, A13 informed him about disposal of all stocks as per instructions of Mr. Khatpal (Zonal Manager). Mr. Khatpal informed him over telephone that such instructions for disposal were given by A2.
Page 71 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) However, he had not mentioned such information given to him in the IOM Ex. PW9/B, which was prepared by him. In his cross-examination by defence he conceded that Mr. Khatpal had given instructions to him to pass on such instructions to his junior officers for disposal of stocks and he had also instructed Area Manager for disposal of stocks during 1991. Thus, he contradicted his own previous statement in this regard. He further deposed that in NFL credit facility was given to bulk buyers, permanent dealers, CSS dealers and some of the adhoc dealers. The higher capacity to off take the stock by those adhoc dealers was the basic reason to grant them credit facility. During 1991, due to peculiar situation of huge stock of urea being there for sale, but lesser number of buyers being there in the market, finding no other alternative, his company took lenient approach to grant credit facility to even adhoc dealers, in order to boost the sale. This witness further admitted having received and read letters Ex. PW8/DX-10, Ex. PW8/DX-11 & Ex. PW8/DX-12. Vide these letters, information was sent to GM (Marketing) with a copy to PW9 by Area Manager, regarding delivery of materials to firms of A1 on separate dates and request was made to collect the payment at Delhi. Even PW11 deposed that payments against delivery orders in favour of M/s AAR KAY Enterprises were to be received at New Delhi.
57 PW13/Sh. V.K. Bhatia was another witness from NFL, who worked as Development Officer in Ambala in 1991. He had been dealing with all persons related to delivery of products of his company. He deposed that in 1991, he was not having any particular instruction to supply the products to any party on credit. He further deposed that there used to be different guidelines/instructions of the department in respect of sale Page 72 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) of the product, depending upon the various factors viz. demand and supply, quantity of product being in store, etc. At times, he had also given products on credit basis. PW14/Sh. Pawan Kumar Kapila had also worked as Assistant Development Officer at Karnal during relevant period and he also admitted that credit facility was given to bulk buyers or special dealers under assured off take scheme. 58 PW27/Sh. Deen Dayal Verma was posted as DGM (Finance & Marketing) at Delhi Head Quarter in 1980. He had circulated policy and circular on the basis of agenda approved by Board of Directors regarding appointment of dealers in NFL. That agenda is Ex. PW19/2, which was circulated vide circular Ex. PW27/A. Ex. PW19/2 refers to 50th Meeting of the Board of Directors held on 27.03.1980, which mentions that the application for dealership was to be scrutinized by a committee and the documents were to be also verified by a team. PW28/Sh. Jatinder Mohan Kapoor, retired as CGM from NFL, who deposed that the guidelines prepared in 1980 continued upto year 1998. He further explained that there used to be appointment of dealer through regular advertisement and appointment of adhoc dealer on the basis of need, feed back from field office or in case of venture into new area as per policy of CMO. He recognised Ex. PW19/2 as the guidelines for appointment of regular dealer in NFL. This witness further deposed that there were separate guidelines for appointment of adhoc dealers and such guidelines were there in the file of his office and he had forwarded a retyped copy of procedure for appointment of adhoc dealers to CBI officer. He identified his signature on seizure memo Ex. PW28/A. This memo mentions sale terms applicable during Kharif season 1991, as one of the documents collected vide this Page 73 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) memo. This document was proved as Ex. PW24/A, wherein under the head of terms of payment, it was mentioned that "by demand draft immediately with issue of delivery orders". 59 Another witness from NFL i.e. PW35/Sh. Eklavya Verma also deposed that during the period 1990-91, there was glut like situation in the market, meaning thereby excess availability of stocks of Urea in the market than the demand. This situation was faced by NFL and other fertilizer manufacturers. For such reasons, NFL came up with scheme known as Regular Off take Assurance Scheme, which was proposed by him. He had prepared office note Ex. PW8/C for this purpose, which was approved by A2 and accordingly on approval of A2, offer letter was issued to M/s AAR KAY Enterprises i.e. Ex PW8/D. He further admitted the suggestion that dealer under this scheme was also known as special dealer and that M/s AAR KAY Enterprises was appointed as special dealer. He further deposed that the facility of the credit was given on month to month basis, depending upon the conditions of the market, in order to cut short the expenses of the warehouses or private godowns. During Kharif season 1991, there was glut like situation prevailing in the market and other dealers were also given credit facility apart from M/s AAR KAY Enterprises. In his re-examination by ld. Sr. PP, this witness further deposed that in normal circumstances, credit facility could not be extended without there being approved sale terms in that regard from the head office. However, in some emergent situations, on the basis of request and assurance of the dealer, oral approval was taken telephonically to extend credit facility. 60 It is also worth to note version of last IO/PW40 also. PW40 deposed that he did not find out as to how many adhoc dealers were appointed Page 74 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) prior to and during tenure of A2. He did not investigate as to what procedure was adopted by NFL to appoint other adhoc dealers than M/s AAR KAY Enterprises and M/s Kuber Traders. He simply relied upon the statements given by NFL officials. He admitted that he had come to know that M/s AAR KAY Enterprises was appointed as special dealer under regular off take assured arrangement. However, he did not come across the knowledge about appointment of any other firm being appointed as special dealer under same scheme. He did not come to know that certain companies namely Shivalik fertilizers, chambal fertilizers, Brijwasan Agro, Punjab Agro Chem, Nagarjuna fertilizers, etc. were also given credit facility being bulk buyers during Kharif 1991. He admitted that accused A5, A6, A7, A8, A9, A10, A11 & A12 had informed him that credit facility to M/s AAR KAY Enterprises was given on the basis of telephonic instructions received from CMO. He also admitted that he had seen letters Ex. PW8/DX10, Ex. PW8/DX11 & Ex. PW8/DX12 during investigation. However, he did not rely upon the same because these were only inter office memo and he did not consider them containing authentic information. 61 Before I proceed further, it is appropriate to refer to the terms of delegation of powers to General Manager (Marketing) as contained in Ex. PW19/1. This document was relied upon by Sr. PP to submit that financial concurrence should have been taken before appointment of dealers. Clause 2.3 of this document refers to power to enter into dealership contracts, contract for sale of products, conservancy, agro- horticulture services. In the general conditions attached to this clause, it is mentioned that these powers were subject to financial concurrence and allocation in the budget. It was further subject to recommendations Page 75 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) of the committee to be constituted for the purpose, in cases involving expenditure of Rs. 50,000/- or above in each case. It is also mentioned that as regards prices of products and terms and conditions of sales, prior approval of DF/MD will be required. Another office order dated 22.06.1990 i.e. Ex. PW10/1 stated that all power involving financial implications will be exercised in prior consultation with the head of finance department. These terms were relied upon by ld. Sr. PP to insist for financial concurrence for appointment of firms of A1. Besides these documents, ld. Sr. PP heavily relied upon the testimony of approver i.e. PW15/Smt. Sunita Vivek.
62 As per testimony of PW15, on 01.10.1990, she was posted as Assistant Area Manager in dealer section of CMO, New Delhi. On that day, she was called by A2 in his office and A2 handed over one filled application for dealership and asked her to prepare note for grant of dealership. This was application on behalf of M/s AAR KAY Enterprises, but the documents were not completely filed with that application. Thereafter, on 12.03.91, she was again called by A2 and this time application form of M/s Kuber Traders was given to her, so as to prepare note and to take approval of it. I have already observed herein before that appointment of firms of A1 as dealer in itself, could not be an instance of criminal misconduct. Therefore, there is no use in finding fault in the appointment of firms of A1 as dealer. 63 The only relevant aspect is that whether these firms should have been delivered materials viz. Urea/DAP on credit. As far as extending benefit of credit facility is concerned, the testimony of witnesses mentioned herein above are very consistent regarding the prevalent practice of extending such benefits in routine manner to other agents as well.
Page 76 of 80 (Pulastya Pramachala)Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) Therefore, it cannot be said that giving facility to the firms of A1 was beyond prevalent practice at the relevant time. In fact the undisputed record of NFL regarding entries of debit and credit as well as balance of outstanding amounts against various dealers of NFL proved as Ex. DW1/25A to Ex. DW1/25N and Ex. DW1/26A to Ex. DW1/26F would show that there had been many dealers against whom there had been outstanding amounts and the volume of credit given to some of these dealers had been on higher side as well. Therefore, it cannot be said that credit facility extended to the firms of A1 was unusual or abnormal action on the part of accused persons. In fact, it is also established on the record by PWs only that oral instructions were given to field officers for extending such benefits in routine manner and even in the present matter, such oral instructions were passed on from CMO. Therefore, the allegations of being part of any conspiracy against accused A4 to A13 had been ill founded. Even such decision taken or approved by A2, cannot be termed as an act of criminal misconduct, because, he had not acted against the prevalent practice in the department. 64 As far as question of financial status of firms of A1 and verification of such financial status and related documents is concerned, in the file related to appointment of dealership to these firms i.e. D-2 & D-3, I find that alongwith the application, a certificate from bank was furnished by A1. It is a different matter that against A1 there had been allegations that he had furnished manipulated certificates of his banker. However, even if it was so done, other accused persons cannot be made responsible for the same. PWs have confirmed that the verification of these documents and financial status of the dealer were to be verified by accounts and finance department, rather than accused persons, Page 77 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) who were part of marketing department as well as field office. Therefore, I am unable to find any such lapse on the part of A2 to A12 except A-3 (presently facing the trial), which may lead to raise inference of criminal misconduct on their part. 65 Another reason to reach aforesaid conclusion is that prosecution has not come up with such case, nor has proved it on the record that except for aforesaid firms of A1, a different criteria altogether was adopted by the accused persons and that they had been too lenient deliberately in favour of the firms of A1 only, so as to extend facility of credit mindlessly. The offences defined u/s 13 (1) (d) (i) & (ii) of P.C. Act, 1988 do require element of mens rea. Therefore, finding any error in the decisions taken by the public servants during the course of discharge of their duties sans dishonest intention, cannot be a case of criminal misconduct. Prosecution has to show and establish that the alleged errors in the actions of public servants were actuated by malafide intentions. In the present case, as observed herein above, I do not find the evidence produced on the record showing the existence of malafide intention on the part of accused persons, in categorical terms.
SANCTION:
66 Ld. counsel for A2 took plea that though A2 had retired at the time of cognizance being taken by the court in this case, sanction for his prosecution for offences under IPC was mandatorily required as per Section 197 Cr.P.C. He submitted that apparently such sanction was not obtained and hence, the prosecution of A2 in respect of offences u/s 420/468/471 IPC is bad in the eyes of law. In this respect, ld. counsel relied upon the judgment passed by the Supreme Court in the Page 78 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) case of N.K. Ganguly (supra). Per contra, Ld. Sr. PP for CBI countered aforesaid plea submitting that no sanction was required u/s 197 Cr.P.C. because, A2 had already retired from the services at the time of taking cognizance. He submitted that Section 197 Cr.P.C. was not applicable because the case was covered by Section 19 of P.C. Act 1988. To support his arguments ld. Sr. PP relied upon the judgment passed by Allahabad High Court in the case of Smt. Neera Yadav (Supra). 67 If, I refer to the concluding lines from para 58 of the judgment passed in the Smt. Neera Yadav's case, then one can find that the arguments made by ld. Sr. PP for CBI stands negated from those observations itself. The observations are as follows:
"Thus, it is held that for offence covered under Prevention of Corruption Act 1988, sanction u/s 19 is sufficient and no further sanction is required u/s 197 of Cr.P.C. In a given case, when apart from offence covered under 1988 Act, there are other offences distinct and separate from offences under 1988 Act, sanction may be required under section 197 of Cr.P.C."
68 On the basis of aforesaid observations, it cannot be said that for prosecution of A2, in respect of offences under IPC, sanction u/s 197 Cr.P.C. was not required. Retirement of A2 had significance only in respect of offence under The P.C. Act 1988 and not in respect of offences under IPC. Therefore, I do not find any merit in the arguments of ld. Sr. PP. Moreover, the judgment passed by Supreme Court in the case of N.K. Ganguly leaves no doubt that sanction u/s 197 Cr.P.C. was required. Therefore, I do find that prosecution of A2 in respect of offences under IPC was bad for want of sanction u/s 197 Cr.P.C. 69 In view of my foregoing discussions, observations and findings, I Page 79 of 80 (Pulastya Pramachala) Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi CBI-34/2016 (old) CBI-1/2019 (New) conclude that CBI has failed to establish the guilt of accused A2 to A12 in respect of all alleged charges. Therefore, accused A2 to A12 (except A-3, who was approver) are acquitted of all the charges leveled against Digitally signed them in this case. by PULASTYA PRAMACHALA PULASTYA PRAMACHALA Date:
2019.04.22 17:25:25 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 22.04.2019 Special Judge (PC Act) CBI-13, (This order contains 80 pages) Rouse Avenue District Court, New Delhi.Page 80 of 80 (Pulastya Pramachala)
Special Judge (PC Act) CBI-13, Rouse Avenue District Court, New Delhi